UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LBRARY 


m 


PUTERBAUGH'S 

COMMON  LAW 

PLEADING  AND  PKACTICE. 

A  PRACTICAL  TREATISE 


FORMS  OF  COMMON  LAW  ACTIONS,  PLEADING  AND  PRACTICE, 

NOW  IN  USE  IN  THE  STATE  OF  ILLINOIS,  AND 

WHEREVER  THE  SAME  SYSTEM 

PREVAILS. 


By  SABIN  D.  PUTERBAUGH, 

LATE  JUIH5E  OF  THE  CIRCUIT  COURT,  AND  AUTHOR  OF 

rUXJiKBAfGH'S  CHANCERY   PLEAMNQ 

AND  PBACTIC& 


SIXTH  EDITION. 


CHICAGO: 
CALLAGHAN    &    COMPANY. 


Entered  according  to  Act  of  Congress,  in  the  year  1888,  by 

8ABIN  D.  PUTKRBAUGH, 

In  the  Oiiice  of  the  Librarian  of  Congress,  at  Washington. 


Stereotyped   and   Printed 

by  the 

Chicago    Legal    News    Company. 


r  o 


INTRODUCTION  TO  THE  SIXTH  EDITION. 


In  presenting  this,  the  sixth  edition  of  this  work,  the  author  deems  an 
extended  introduction  unnecessary.  The  first  edition  was  published  in  1864, 
then  in  a  crude  condition,  with  meager  hopes  of  its  success.  Since  then  it 
has  passed  through  four  revisions,  with  a  constant  and  earnest  endeavor,  on 
the  part  of  the  author,  to  make  it  as  perfect  and  reliable  as  his  abilities, 
amidst  professional  and  judicial  duties,  would  permit.  Whatever  merits  or 
demerits  former  editions  possessed  are  well  understood  b^'  the  courts  and 
members  of  the  profession  throughoat  the  State  of  Illinois,  and  other  States 
and  Territories  where  the  work  has  been  used  and  recognized. 

The  last  revision  was  in  1880,  prepared  in  1879.  Since  then  there  have 
been  constant,  and  in  many  instances  material  and  radical  changes  in  the 
Statutes  upon  subjects  herein  considered.  The  decisions  of  the  Supreme 
and  Appellate  Courts  have  shed  much  light  upon  questions  of  pleading  and 
practice,  and  given  constructions  of  statutory  remedies  and  defenses  which 
have  rendered  former  editions,  in  many  respects,  an  unsafe  guide. 

General  principles  of  law  and  justice  are  immutable,  but  the  remedies 
for  enforcing  rights  are  subject  to  constant  changes.  As  new  exigencies 
arise,  courts  are  called  upon  to  give  constructions  to  the  same,  as  governed 
by  such  general  legal  principles. 

It  is  to  be  hoped  that  the  present  edition  will  be  found  to  contain  cor- 
rect pleadings  and  practice  at  common  law,  and  statutory  remedies  and 
defenses,  so  far  as  it  pretends  to  treat,  as  it  exists  in  Illinois  to-day.  All  the 
statutes  to  date,  the  decisions  of  the  Supreme  Court  down  to  and  including 
part  of  the  121st  Illinois  Reports,  and  of  the  Appellate  Court  from  its  organ- 
ization to  and  including  the  21st  volume  of  the  reports  of  its  opinions,  have 
been  examined,  and  so  far  as  they  appeared  applicable  to  the  subject  under 
consideration,  have  been  referred  to  and  cited.  References  to  the  Statutes 
are  to  the  latest  editions. 

The  entire  work,  so  far  as  deemed  necessary,  has  been  revritten  and 
revised.  Five  new  chapters  and  over  fifty  new  practical  forms  have  been 
added.  The  contents  of  this  edition,  as  well  as  the  changes  and  additions, 
appear  in  the  "Analysis  of  Contents,"  iuiraediately  following  this  introduc- 
tion. 

It  has  been  the  constant  aim  of  the  author  to  compress  into  a  single 
volume  the  greatest  amount  of  information  possible.  In  following  this  gen- 
eral plan  much  valuable  matter  is  necessarily  crowded  out,  and  great  brevity 
required  in  the  subjects  considered.  To  partially  obviate  this  omission  ref- 
erences have  been  freely  made  to  other  works  of  standard  aiithority,  where 
the  several  subjects  have  been  separately  and  elaborately  treated. 

The  author  is  grateful  for  the  generous  favor  and  kind  reception  with 
which  former  editions  of  this  work  have  been  received  by  the  courts  and 
members  of  the  bar,  and  trusts  the  present  edition  will  deserve  and  receive 
the  same  favorable  reception  and  consideration. 

S.  D.  PUTERBAUGH. 

Peouia,  III.,  March  1,  1888. 


1 


ANALYSIS  OF  CONTENTS. 


CHAPTER  I. 

-  GENERAL  PRINCIPLES  OF  PLEADING. 

CHAPTER  II. 

COMMENCEMENT  OF  AN  ACTION. 

The  Praecipe 38 

Security  for  Costs,  etc 39 

When  required,  etc 39 

On  official  bonds,  penal  actions 40 

By  minors  by  next  friend,  etc 40 

Form  of  security  for 40 

Approval  and  effect  of  bond 41 

Dismissal  for  want  of 41 

Motion  to  dismiss  for  want  of 41 

Rule  to  file  security A'l 

Cross-motion  for  leave  to  supply,  etc 42 

Objections  to  security 42 

Plaintiff  a  poor  person,  may  prosecute  without 42 

Affidavit  of,  in  support  of  motion,  etc 42 

Bail  in  Civil  Cases,  etc 43 

Actions  sounding  merely  in  damages 44 

Plaintiff  to  give  bond 44 

Bail  bond 44 

Who  may  become  bail 45 

Sheriff  may  administer  oath 45 

Sheriff 's  liability 45 

Insufficient  bail,  etc 45 

Discharge  or  reduction  of  bail 46 

Capias  to  stand  as  a  summons,  etc 46 

Surrender  of  defendant,  etc 46 

Record  of 47 

In  vacation 47 

When  bail  may  be  discharged 47 

After  judgment,  effect  of 47 


VI  ANALYSIS  OF  CONTENTS. 

New  bail  may  I)e  taken 48 

Bail  may  arrest  principal 48 

Prosecution  of  bail 48 

Suit  on  bail  bond,  when ,  etc 48 

Bail  may  obtain  judgment  against  principal,  when   49 

Death  of  principal,  etc 49 

When   bail  discharged,  etc 50 

Bankruptcy,  etc.,  of  principal 50 

Form  of  affidavit  charging  fraud 51 

Same,  different  facts  stated 61 

Same,  in  actions  sounding  merely  in  damages,  etc 52 

Form,  qf  judge's  order  for  cnjyias,  etc 53 

"      of  bond  to  be  given  by  plaintiff 53 

"      of  bond  required  of  defendant 54 

Discharge  of  bail  in  discretion  of   court 54 

Effect  of  surrender  of  principal  after  return  day 55 

Suits  on  bail  bonds,  how  brought 55 

FiUNG  Affidavit  of  Claim  with  Declaration 55 

Form  of  affidavit  of  claim,  etc 56 


CHAPTER  III. 

ASSUMPSIT. 

Nature  of  the  action,  etc 57 

Where  it  lies,  etc 58 

Consideration  of  promise 60 

Privity  of  contract 61 

COMMENCEMKNT  OF  THE  ACTION 61 

Form  of  praecipe  in 61 

Declaration  in 62 

Instrument  or  account  sued  on,  etc •. 63 

Continuance  for  want  of 63 

Dismissal  at  second  term 64 

Waiver  of,  etc 64 

Form,  indebitatus  or  common  counts 65 

"       consolidated  common  counts 67 

Money  had  and  received 70 

Form,  quantum  meruit  count 72 

•'       quantum  valebant  count 72 

Common  Counts  Relating  to  the  Character   in  wnicn  Plaint- 
iff Sues,  or  the  Defendant  is  Sued 73 

Form,  by  surviving  partner 73 

''       against  surviving  partner 74 

"       by  husband  and  wife,  etc 75 

"       against  husband  and  wife,  etc 76 


ANALYSIS  OF  CONTENTS.  vii 

Fofin,  hjj  executor,  etc 77 

"       same,  etc 78 

"       &//  hushind  and  tvi/e,  ex\v 79 

"       bi/  administrator,  etc 79 

"       h>/  husband  and  wife,  adm'x 80 

Spkcial  Counts. 

Form,  on  promissory  note 80 

"       on  same  ivith  common  counts 81 

"        on  promissory  note,  short  form,  payee  vs.  malrr 82 

"        same  on  six  notes  in  one  count 83 

•'       indorsee  vs.  maker 85 

"        indorsee  of  ex.  vs.  maker 86 

"       surv.  p)art.  vs.  surv.  j^art 87 

*'        executor  vs.  nuiket 89 

"       administrator  vs.  maker 89 

Form,  partners,  payees,  vs.  partners,  etc 90 

"      payee  vs.  husband  and  wife 91 

"      indorsee  vs.  indvrser 91 

Measure  of  damages  , 94 

Degree  of  diligence,  etc 95 

Form,  indorsee  vs.  indorser,  etc 98 

**      same,  etc 99 

*'      payee  vs.  guarantor 100 

"      payee  vs.  drawer  on  accep)ted  order 103 

"      payee  of  check  vs.  drawer 104 

Declakations  on  Inland  Bills  op  Exciianc ;■: 105 

Form,  drawer  vs.  acceptor 105 

"      same,  etc 106 

"       same,  etc 107 

"      payee  vs.  acceptor 108 

"      first,  etc.,  indorsee  vs.  acceptor 109 

"      payee  vs.  drawer,  etc 109 

"      payee  vs.  drawer,  etc 110 

"       same,  etc 110 

Declarations  on  Warranties 1 12 

Form,  on  warranty  of  horse,  etc 112 

"       hops  sold  by  sample 113 

Declarations,  Landlords  against  Tenants 116 

Form,  for  breach  of  duty,  etc 116 

"       not  ki  eping  premises  in  repiair 117 

Declarations  on  Promise  to  M  \rry 118 

Form,  on  promise  to  marry,  etc 118 

'•      same,  etc 118 

"      same,  etc 118 

"      same,  etc 119 

Declarations  against  Bailees,  etc 122 

Form,  against  hirer  of  Jiorse,  etc 122 

"       against  carrier,  etc 125 

**      same,  etc 127 


VIII  ANALYSIS  OF  CONTENTS. 

Deci.arations  on  Contkacts  of  Sale 130 

ForiHffor  not  accepting  goods 130 

"      same,  etc 131 

"      for  not  delivering  goods,  etc 132 

"      same,  etc 133 

Declakations  on  Policies  op  Insurance 134 

Form,  on  fire  insurance  policy 134 

"       same,  short  form 139 

Defenses  to  the  Action,  etc 140 

Motions  to  quash  or  dismiss '. 140 

How  made 140 

When  to  be  made,  etc 141 

When  writ  will  be  quashed,  etc 141 

Pleas  to  Jurisdiction  and  in  Abatexiknt 144 

At  what  time  to  be  pleaded 144 

What  may  be  pleaded  in 145 

Premature  action,  etc 145 

Amendment  to  cure  matters  of  abatement 146 

Death  of  sole  plaintii?  or  defendant 146 

Death  of  sole  plaintiff 147 

Death  of  sole  defendant 147 

Death  of  part  of  parties 148 

Death  of  all  on  one  side 148 

When  to  be  ^  erified 148 

Requisites  of  pleas 149 

Judgments  upon 149 

Form,  tojuritdictinn  of  court 150 

"       misnomer  of  defendant 152 

"      re]}lication  to  same 155 

"      non-joinder  of  defendant .■ 156 

"      replication  to  same 156 

"      non-joinder  of  party  plaintiff 157 

"  •    misjoinder  of  defendant 158 

"       another  suit  pending 160 

"      replication  to  same,  nul  tiel  record 160 

"       replication  to  same,  new  assignment 161 

Pleas  in  Bar 163 

Form,  non  assumpsit 166 

Affidavit  of  merits 166 

Form,  of  affidavit  of  merits 167 

General  issue,  with  notice,  etc 167 

Form,  notice  of  set-off. 168 

Special  Pleas  in  Bar,  Replications,  etc 170 

Pleas,  etc.,  as  to  part,  etc 174 

Form,  similiter  to  plea 175 

",      statute  of  limitations 175 

"      replication  to  the  same 176 

"      similiter  to  same 176 


ANALYSIS  OF  CONTENTS.  ix 

Foiin,  replication  to  plea  of  statute  of  limitations,  etc 177 

"      rejoinder  to  same 177 

"      infanaj 181 

'*      replication  to  denying,  etc 182 

"      same,  necessaries,  etc 182 

"      rejoinder  to  same 182 

"      replication  to  plea  of  infancy,  etc 183 

"      rejoinder  to  same 183 

"      statute  of  frauds,  etc 186 

"       replication  to  same,  etc 186 

'*      statute  of  frauds,  etc 187 

"      replication  to  satAt 187 

Collateral,  etc.,  undertakings,  etc 189 

Form,  fraud  and  circumvention 191 

"     fraud,  etc 191 

**      replication  to  same 192 

Diligence  required  by  maker  on  charge  of  fraud,  etc 195 

Diligence  required  by  assignee  against  maker 196 

Form,  usury 197 

"      rej^Iication  to 198 

"      set-qf 204 

*'      replication,  nil  debet 205 

"      release 210 

••      replication  to  same 211 

'*      payment 215 

"       replication  to  same 216 

*'       accord  and  satisfaction 218 

''      reiylication  to  same 219 

"      accord  and  satisfaction,  etc 221 

"      arbitration  and  award 223 

*'      replication  to  same,  etc 224 

"      judgment  recovered 224 

*'      replication  to  same 225 

"       tend  r,  etc 228 

•*      replication  to  same,  etc 231 

'       same,  admitting  tender,  etc 231 

"      by  surety,  creditor,  give  further  time  to  principal 234 

"       by  surety,  that  creditor  tvas  required  to  sue  principal 238 

"      breach  of  warranty,  etc 241 

Want  of  consideration  of  note,  etc 244 

Form,  want  of  consideration 245 

*'      total  failure  of  consideration,  etc 246 

"      same,  etc. ,  etc 247 

*'       same,  to  suit  by  assignee,  etc 248 

"      partial  failure  of  consideration 251 

"       7wte  given  for  money,  won  at  gaming 252 

"       discharge  in  bankruptcy 253 

'*       note  given  for  illegal  consideration,  difference  in  options, 

etc 255 


X  a:n"alysis  of  contents. 

Forvi,  denying  execution  of  instrument  sued  on 257 

Pleas  denj-ing  joint  liability,  etc 258 

Form,  denying  joint  linhiUty 258 

"      same,  etc 258 

"      Nul  tiel  corporation 259 

"      puis  darrein  continuance 261 

"      same,  etc 262 

"      same,  etc 262 

Demurkers 265 

Generally 266 

Form,  to  declaration,  etc 268 

*'      same,  special 268 

' '     joinder  in 269 

"       short,  to  declaration 269 

"      joinder  in,  fihorf,  etc 269 

"       to  plea  in  abatement 272 

"      joinder  to  the  same 272 

"      to  pleas  in  bar 273 

"      joinder  to  same 274 

(See,  AiiSO,  Miscellaneous  Forms,  post,  for  additional  Forms  in 
Assumpsit;    also    observations    following  each    precedent 

GIVEN.) 

CHAPTEE  lY. 

ACCOUNT. 

"Where  the  action  lies,  etc , 276 

Demand  for,  etc 279 

Time  for  which  it  is  to  be  taken 280 

Form,  praecipe,  commencing  of  suit 280 

Declarations  in  the  Action. 

Fortn,  against  bailiff 280 

"      against  receiver 281 

"      tenants  in  common • 282 

"       suits  between  partners 283 

"       same,  relating  to  land,  etc 285 

Pleas  in  the  Action. 

Form,  never  bailiff 286 

*•      never  receiver 286 

*'      in  suits  between  tenants  in  common,  etc 286 

"       same,  fully  accounted 287 

(See  observations  following  each  precedent.) 


ANALYSIS  OF  CONTENTS.  xi 


CHAPTER  V. 

COVENANT. 

Where  the  action  lies,  etc 289 

Covenants  in  deeds,  breaches,  etc 291 

Commencement  of  the  Action 294 

Form,  praecipe /or  mmmons,  etc 295 

Declauations  in  Covenant 295 

Form,  grantee  vs.  grantor,  etc 295 

"      same,  etc.,  etc 297 

'*       second  or  remote  grantee  vs.  grantor,  etc 298 

"      on  covenants  in  lease,  etc 299 

'*       apprentice  vs.  mastery  etc 300 

"      on  fire  insurance  policy 302 

Defenses  to  the  Action 306 

Pleas  in  abatement 306 

Pleas  in  bar 306 

Form,  non  est  factum 306 

"      payment,  etc 307 

Pleas  as  to  part,  etc 308 

Form,  performance.. 309 

"       i»  suit  by  apprentice,  etc 309 

(See  OBSEiiVATiONS  following  each  precedent.) 

CHAPTERS  I. 

DEBT.  ACTION  OF. 

^Vhere  the  action  lies 31 J 

Penal  actions  under  statute 315 

Commencement  of  the  Action 316 

Form,  praecipe/or  summons 317 

Declaration  in 317 

Form,  indebitatus  count 321 

"       on  promissory  note,  etc 323 

'*       on  bill  of  exchange 325 

*'       on  atrard,  etc 326 

"       on  judgment  in  same  court 328 

"      same,  of  another  State 329 

"       same,  of  justice  of  the  peace,  etc 330 

"      in  action  for  rent,  etc 331 

"      on  bill  or  sealed  note 333 

Profert,  when  necessary 333 


xii  ANALYSIS  OF  CONTENTS. 

Actions  on  Penal  Bonds,  Statutory,  etc 334 

Judgments,  etc.  in  Actions  on  Penal  Bonds 334 

Declakations  upon  Pi:nal  Bonds,  etc 335 

Form,  on  ajipea I  bo»d,  etc 335 

"      on  replevin  bond,  etc 338 

"      same,  etc 340 

"      on  sheriffs''  bond,  etc 343 

"      on  guardian^ s  bond 348 

*'      same,  etc.  etc 351 

"       on  administrator's  bond 353 

"      devastavit,  Jiow  alleged 355 

*'      on  attachment  bond 358 

*'      on  injunction  bond 362 

"      satne,  etc.  etc 364 

"       on  dram  shop  license  bond,  etc 369 

"       on  statute,  dram  shop,  act,  etc 371 

"      on  statute,  cutting  trees,  etc 372 

"      on  statute,  against  drover,  etc 375 

Excep'  ions  and  provisions  in  statute 377 

Form,  on  statute,  against  sheriff'  not  admitting  counsel  to  prisoner  378 

"      on  statute,  landlord  vs.  tenant,  for  double  rent 379 

Defenses  to  the  Action 383 

Pleas  in  Ai?.'>tement 384 

Pleas  in  bak 384 

Form,  nil  debet 384 

"      non  est  factum 386 

"       non  est  factum  and  nil  debet,  etc 387 

"      non  est  factum,  after  oyer,  etc 388 

Special  non  est  factum 389 

Form,  escrow,  etc 390 

"      onerari  non 391 

••       tender,  etc ". 392 

"       nul  tiel  corporation 393 

"       replication  to  nul  tiel  eor2)oratio)i 395 

'♦      ^j?f«  of  duress,  etc 395 

"      replication  to  same 396 

"      plea  of  set-off,  etc 396 

"      payment,  etc 397 

"      failure  of  consideration,  etc 397 

'*      performance  generally 398 

*'       non  damnificatus 399 

"       no  rent  in  arrear,  etc ; 400 

"       no  award  made 400 

*•      on  replevin  bond,  merits  not  tried,  property  in  defendant. .  401 

"      former  conviction,  etc 402 

Demurrer  after  craving  oyer 403 

(See  observations  following  each  pkecedent.) 


ANALYSIS  OF  CONTENTS.  xiii 


CHAPTER  YII. 

DISTRESS  FOR  RENT. 

Nature  of,  etc- 405 

Landlord's  lien,  statutory,  etc 405 

What  may  be  distrained 408 

Form,  distress  warrant 40S 

Return  of  warrant,  inventory 409 

Form,  inventory  to  he  filed,  etc 409 

Summons  to  be  issued 409 

Notice  to  non-residents,  etc 409 

Form,  affidavit  for  j^uhVicafion 410 

Judgment  for  plaintiff 412 

Where  there  is  no  personal  service 412 

Judgment  for  defendant 412 

Release  of  property  distrained,  etc 413 

Perishable  property 418 

Rights  against  sub-lessees 414 

Depets^ses  to 411 

Defendant  may  plead  set-off,  etc 411 

CHAPTER  YIII. 

CASE,  ACTION  ON. 

Nature  of  the  action,  etc 415 

Where  the  action  lies,  etc 416 

CojfMENCEMENT  OP  THE  ACTION 42] 

Form,  prascipe /or  summons 422 

Declarations  in  Case 422 

Form,  negligence  of  R.  R.  Co.  in  crossing  highways,  etc 422 

"       on  Statute  vs.  R.  R.  Co.  for  not  ringing  bell,  etc 427 

"       vs.  same,  for  negligence  in  managing  train,  et-^ 428 

"      vs.  same,  damages  from  engine 429 

"      same,  second  count 430 

'*      vs.  same,  on  statute  for  not  fencing  its  road 432 

"      same,  second  count 4-33 

"      vs.  same,  by,  administrator  for  cotising  death,  etc 437 

"      vs   city,  for  neglect  to  keep  sidewalk  in  repair,  etc 440 

"     for  keeping  vault  uncovered,  etc 442 

"      vs.  proprietor  of  stage  coach  for  negligence,  etc 444 

"      for  Tceeinng  vicious  dog,  etc 445 

"     for  ma  Vicious  prosecution 446 


XIV  ANALYSIS  OF  CONTENTS. 

- . » 

Fvrvi,  same  second  count 448 

''      for  criminal  conversation 451 

"      for  (hhauching  plaintiff's  daughter 4n3 

"      for  deceit  in  sale  of  horse 455 

"       same,  in  sale  of  tvool,  etc , 456 

"       vs.  sheriff'  for  talcing  insufficient  sureties  in  replevin 457 

"      for  orer-lo  ding,  etc.,  horse 458 

"       vs.  phi/sician  for  malpractice 459 

"      vs.  attorney  for  negligence,  etc 4G0 

"       vs.  R.  R.  Co.  as  carrier  for  negligence,  etc ....  461 

"      vs.  saloon-keeper  under  the   statute,  causing  intoxication 

and  death  of  pilnintiff's  husband,  etc 462 

**      vs.  landlord  of  dram  shop,  etc.,  under  the  statute,  for  injury 

caused  by  intoxicated  person,  etc 4^^ 

In'  Case  for  Slander  and  Libkl 466 

What  amounts  to  slander 466 

Where  the  action  lies  for,  etc 466 

Declarations  for  Slandur  and  Libel 477 

Form,  for  slander,  etc 477 

"      words  charging  forn ication,  etc 478 

"      tcords  charging  perjury 479 

"       same,  second  count 480 

"      for  tvords  charging  larceny 481 

"      for  tcords  in  foreign  language  482 

"      for  u'ords  imputing  insolvency,  etc 483 

"      for  libel  in  newspaper 485 

"     for  libel  in  letter,  imjJuting  insolvency ,  etc 486 

Defrnsks  to  the  Action  op  Case 488 

Pleas  in  Bar,  etc 489 

Form,  not  guilty 489 

General  issue  in  actions  for  slander,  etc 490 

Special  pleas  in  actions  for  slander,  etc 492 

Form,  justification,  etc 494 

"      replication  de  injuria 495 

"     justification,  etc 495 

(See  observations  following  each  precedent.) 


CHAPTEE  IX. 

TROVER. 

Nature  of  the  action,  etc 497 

Where  the  action  lies 497 

Commencement  op  the  Action, 506 

Form  of,  praecipe  for 5O6 

The  Declaration 507 


ANALYSIS  OF  CONTENTS.  xv 

Form,  genera  1 508 

"      hy  executor,  etc 509 

Defences  in  Trover 511 

PLEjis  IN  Bar 511 

Form,  not  guiltij 613 

What  plaintiff  must  prove 515 

(See  observations  following  each  precedent.) 

CHAPTER  X. 

REPLEVIN. 

Nahire  and  history  of  the  remedy 515 

Where  the  action  lies,  etc 517 

Who  may  maintain  the  action 622 

Who  may  be  made  defendant- 524 

CoilMENCEilEXT  OP  THE   ACTION 525 

Form,  affidavit  in 526 

Declaration  in 527 

Form,  gencralhj 527 

"       count  in  trorer,  etc 528 

Defenses  to  the  Action 528 

Pleas  in,  etc 528 

Form,  non  cepit 528 

"      non  detinuit 530 

*'       not  guilttj  to  count  in  t rarer 531 

"      property  in  defendant 531 

"      replication  to  same 532 

"      propierty  in  stranger 533 

"       replication  to  samt 533 

"      justification  hy  officer  wider  execution 534 

"       lien  on  property,  etc 536 

"      property  held  as  pledge,  etc 538 

"      arotcry,  etc.,  for  rent 538 

"      plea  in  bar  to  avowry,  etc 539 

"       same,  no  rent  in  arrear 540 

(See  observations  under  each  precedent.) 

CHAPTER  XL 

TRESPASS. 

Nature  of  the  action,  etc 541 

Distinction  between  trespass  and  case  abolished 543 

Injuries  to  the  Person 543 

Where  the  action  lies  for 543 


XVI  ANALYSIS  OF  CONTENTS. 

Injuries  to  Pekronal  Propki:ty 548 

^Vllere  the  action  lies  for 548 

WIio  may  maintain  the  action 551 

Aj;:ainst  whom  it  lies,  etc 552 

IxjuiiiES  TO  Real  Property 553 

Whore  the  action  lies  for 554 

Com  ■  r •  :ncrment  of  the  Action 558 

Form  of  praecipe /or  sitmnioiis 558 

The  Declaration,  etc 559 

Matter  or  thing  affected 559 

The  plaintiff's  right  or  interest 560 

Statement  of  the  injury 561 

The  damages 564 

Measure  of 564 

Vindictive,  etc 565 

Joinder  of  counts 565 

FoK  Injury  to  the  Perron 565 

Form,  for  assaidt,  etc 566 

"      for  common  assn)(It 568 

"       same,  ivith  2>i'^fol 568 

"      for  riding,  etc.,  against  j)Juintiff 569 

"       hy  husband  and  wife,  etc 569 

"      false  i7n2jrisonment,  etc 570 

"       sayne,  etc 570 

"      for  debauching  jylaintiff's  daughter 571 

"      for  critninaJ  conversation 571 

For  Injury  to  Personal  Property 572 

Forin  de  bonis  asportatis 572 

"      for  chasing  cattle,  etc 572 

* '      for  chasing  mare,  etc 573 

"      for  driving  carriage  against  plaintiff's,  injury,  etc 573 

"      for  killing  2)laintij[f's  horse 574 

"       against   constable,   under  the  statute,  for  taking    exemjit 

property 575 

For  Injuries  to  real  Property 576 

Form,  for  breaking  info  dwelling,  etc 576 

'■     for  common  expulsion 577 

"     for  entering  close,  etc 577 

"      for  cutting  and  carrying  aunty  trees 579 

•'      for  digging,  etc.,  in  coal  mine 579 

"      for  mining  ore,  etc 579 

Defenses  to  the  Action 580 

Pleas  in  Bar,  etc 580 

Form,  plea  not  guilty 582 

"      son   assault  demesne 583 

"      same,  etc.,  etc 584 

"      rejilication  de  injuria,  etc 585 

New  assignment,  etc 586 


ANALYSIS  OF  CONTENTS.  xvii 

Form,  plea,  molliter  manus  imposuit.  etc 587 

"      same,  etc.,  etc 588 

"      justification  by  teacher,  etc 589 

"      justification  by  J.  P.,  etc 590 

"       same  by  officer  making  an  arrest 591 

"      satne,  etc. ,  etc 592 

'•       same  by  private  person,  etc 594 

"       by  sheriff  justifying  talcing  goods  under  execution 595 

"      replication  to  pleas  of  justification,  etc.,  etc 597 

"       that  injury  was  caused  by  i)laiiitiff's  negligence,  etc 593 

"       license 598 

"       replication  to  same 599 

"      lib^rum  tenementum fiOO 

"       replication  denying,  etc 602 

"       new  assignment 602 

(See  OBSKKVATIOjSS  following  each  PKECEDliNT.) 


CHAPTER  XIL 
EJECTMENT. 

Action  of 604 

Nature  of  the  action,  etc 604 

When  the  action  lie?:,  etc 604 

Who  mny  maintain  the  action 608 

Commencement  of  the  Action ....-.,.  609 

Form,  prsecipe/ar  summons 610 

The  Declaration 610 

Form,  generally 611 

Form,  by  several  persons,  etc.,  etc 612 

Defenses  to  the  Action 613 

Form,  plea  not  guilty 614 

Claim  for  Mesne  Profits ■. 614 

Form,  suggestion  of  claim  for  mesne  profits 615 

Defense  to  ciaira  for  same 615 

Form,  i^lea  non-assumpsit,  thereto 616 

(See  OBSEEVATioiirs  following  each  precedent.) 

CHAPTER  XIIL 

ATTACHMENT. 

Proceedings  in 618 

Nature  of  the  proceeding ^ 618 

Where  it  lies,  etc 619 


XVIII  ANALYSIS  OF  CONTENTS. 

COMMRNCKMENT  OF  THE  PROCEEDING,  ETC 620 

By  affidavit,  etc 620 

Foryn  of  affidavit 620 

Where  suit  to  be  brouglit 622 

Plaintiff  required  to  give  bond 622 

Against  joint  debtors 623 

Execution  of  the  writ,  etc 624 

The  Declaration,  etc 625 

Garnishees 625 

Notice  to  Defendant  by  Puui.tcation 626 

Defensks  to  the  I'iiockkding 627 

Form  o£  plea  in  abatement  traversing  atMdavit 627 

Practice  and  Pleading  in 628 

Forthcoming  bonds,  etc 629 

Bond,  etc.  for  return  of  property 629 

lAahilify  of  sheriff  for  failing  to  fake  and  return  bond 630 

Insufficient  bond,  etc 630 

Suit  on  bond 631 

Feeding  animals  attached 631 

Sale  of  perishable  property 631 

Interpleader  by  Third  Party 632 

Form,  Interpleader 633 

Attactimknt  in  aid  of  Sutt  Pending 633 

Form  of  affidavit  in  aid,  etc 634 

"      same,  in  case  of  tort,  etc 635 

'*      O'der  of  judge  for 635 

Judgment  where  there  is  no  personal  Sfrvice 636 

Sale  of  property  on  execution 636 

Division  of  proceeds,  etc 636 

Division  by  the  sheriff,  etc 637 

Proceeds  brought  into  court 637 

Garnishment 637 

Form  of  affidavit  for,  etc.,  on  jitdgnient,  etc 638 

Service  and  return  of  summons 638 

Interrogatories  and  Answers 639 

Form,  interrogatories  to  garnishee 640 

"      ansicer  of  garnishee 640 

Plaintiff  may  contest  the  answer 641 

Garnishee  may  deduct  demands 642 

Other  claimants  of  effects  in  hands  of  garnishee ■  643 

Garnishee  may  contest  proceed!  ngs,  etc 644 

What  is  subject  to  garnishment 6.44 

Non-resident  garnishee 645 

Conditional  Judgment 646 

Final  Judgment ". .  646 

Death  of  Garnishee,  etc.,  etc 647 

Effect  op  Judgment  against  Garnishee 647 

When  debt  of  garnishee  is  not  due,  etc 647 


ANALYSIS  OF  C0:N"TENTS.  xix 

Goods,  etc.,  in  hands  of  garnishee  to  be  given  up,  etc 648 

Costs  in  proceedings  against  garnishee 650 

Attachment  op  Water  Crafts 650 

For  what  lien  is  given 650 

Lion  on  goods  for  freight 651 

Limitation  of  proceeding 651 

The  Petition  for  Enforcement  of  Lien 651 

Form  of  petition  for  attachment,  etc 652 

"      same,  etc.,  etc 652 

Bond  to  be  filed,  etc 653 

Notice  by  publication 653 

Intervening  cr^^ditors 653 

Bonding  vessel 654 

Appraisement — ^Restitution — Sale 654 

Answer — ^Affidavit  of  Merits — Default 654 

Judgments — Order  of  Sale 654a 

Amendments 654a 

Distribution,  etc 654a 

(See  observations  following  each  precedent.) 


CHAPTER  XIY. 

SCIRE  FACIAS. 

Nature  of  the  ^y^^t,  etc 655 

To  Make  Party  to  a  Judgment 656 

Against  garnishees,  etc 656 

To  revive  a  judgment 657 

Form  of  praecipe  for 658 

"       of,to  revive  jucJgment 658 

On  Mortgages,  Statutory 659 

Form  of,  to  foreclose  mortgage 661 

"      same,  etc.,  etc 663 

On  Recognizances,  Statutory 663 

Form  o/" scire  facias  ujjoh  recognizance 665 

Defense  to  scire  facias,  etc 667 

What  a  defendant  may  plead 667 

(See  observations  following  each  form.) 

CHAPTEE  XY. 

MANDAMUS. 

Nature  and  purpose  of  the  writ -. 671 

In  what  cases  awarded,  etc 672 

Jurisdiction  given,  in  what  courts 674 

The  relator,  etc 675 


XX  ANALYSIS  OF  CONTEIs^TS. 

Demand  necessary,  etc 675 

Petition  fob,  etc 675 

Requisites  of 675 

Summons  to  issue,  etc 676 

Default,  answer,  etc 676 

Time  to  plead,  etc 676 

Pleadings,  etc 676 

Judgment,  etc.,  etc 677 

False  Return,  Damages,  etc 677 

Making  New  Defendants,  etc 677 

Death  op  Defendant,  etc 677 

Effect  of  other  Remedies,  etc 677 

Form,  petition  for  writ 678 

Proceedings  upon 679 

Defenses  to,  etc 681 

Answer  or  pleas 682 

Form,  anstcer  to  petition 682 

"      plea  to  petition 683 

(See  observations  following  each  precedent.) 


CHAPTER  XYL 

QUO  WARRANTO. 

Nature  of  the  writ,  etc 684 

The  Proceedings  by  Information 685 

In  what  cases  it  lies,  etc 685 

When  leave  to  file  will  be  granted 686 

When  leave  to  file  will  not  be  granted 688 

Statutory  Proceedings,  etc 691 

Summons  to  be  issued,  etc 692 

Service  of  the  same 692 

Defendant  required  to  plead,  etc 693 

Time  allowed  to  plead 693 

Judgment  in  Nature  of,  etc 693 

Appeals  and  Writs  of  Error,  etc 693 

By,  and  against,  what  Parties  the  Information  may  be  Filed.  .  694 

Matters  Preliminary — Practice,  etc .' 695 

The  Information 695 

Form  of,  hy  attorney  general,  etc 696 

"      of,  at  instance  of  relator,  etc ,  697 

Defenses  to  the  Proceeding 699 

Pleas  to,  etc 699 

Form  of  plea  hy  corjwration,  etc.,  etc 700 

'•      0^ plea  hy  person,  etc 700 

Replications  to  pleas,  etc 701 

(Seb  observations  following  each  precedent.) 


ANALYSIS  OF  CONTENTS.  xxi 


.  CHAPTEK  XYII. 
CERTIORARI. 

The  Common  Law  Writ 703 

Its  nature  and  purposes 703 

The  Statutory  Writ,  etc 705 

Its  nature  and  purposes 705 

The  Petition,  etc 706 

Requisites  of,  etc 706 

Form  of  petition  for,  etc 709 

(See  observations  following  each  precedent.) 

CHAPTER  XVIII. 

HABEAS  CORPUS. 

History  of  tbe  remedy,  etc 712 

Wlien  writ  will  be  granted,  etc 715 

By  whom  application  for  may  be  made 717 

To  whom  it  may  be  made 717 

Petition  for,  etc 718 

Form  of  pefition,  etc 719 

"      of,  same,  etc.,  etc 720 

"      of  parent  for  child,  etc 721 

"      petitioner  held  hy  Ca.  Ros.,   etc 721 

"      ad  testificandum,  etc , 722 

Allowing  and  Issuing  op  the  Writ 723 

Form  of  order  by  master  in  chancery 723 

'*      general,  of  the  icrit 724 

Service  of  the  writ,  etc 724 

Expenses  of,  etc 724 

Return  of,  etc 725 

Form,  return  of  writ,  etc 726 

"       same,  denying  custody,  etc 726 

"       same,  by  pricate person,  etc 726 

Examination,  etc.,  etc 726 

Denial  of  return,  etc  727 

Form,  order  of  discharge,  etc 729 

**       order  remanding  prisoner,  etc 730 

"      order  of  discharge,  etc.  etc 730 

**      ord,er  remanding,  etc.  etc 731 

(See  OBsiiRVATioNS  following  each  precedent.) 


XXII  ANALYSIS  OF  CONTENTS. 

CHAPTER  XIX. 

ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Nature  of  the  ofBce,  etc 732 

How  admitted 732 

Qualifications 733 

AuTiroiUTY  OK  Attorneys,  etc I'-'A 

It  cannot  be  delegated 737 

Retainer,  etc 737 

Agreements  made  by  for  client,  etc 737 

Admissions  by,  etc , 7>3 

Termination  of  employment 738 

Duties  and  Liabilities 739 

Ought  not  to  be  witness  for  client,  etc 739 

Acting  in  another  capacity 740 

Cannot  act  on  opposite  sides 740 

Liability  to  third  person 741 

Dealings  between  attorney  and  client 741 

Assigned  by  court  to  defend  prisoners 742 

Rights  and  Privileges 742 

Privileged  communications 742 

Fees,  etc 743 

Lien  of,  etc 744 

CHAPTER  XX. 

SECURITY  FOR  COSTS. 

When  required  after  suit  brought 745 

Form,  offidamtfor  rule,  etc 746 

When  motion  for  rule  to  be  made 746 

Plaintiff  a  Poor  Person,  etc 747 

Fo>  m,  a jffidavU  for  leave  to  prosecute  as  such,  etc 748 

"      bond  for  costs  after  suit  brought,  etc 748 

CHAPTER  XXI. 

CHANGE  OF  VENUE. 

When  same  may  be  had,  etc 749 

Interest,  etc.,  of  judge 749 

Prejudice,  etc.,  of  inhabitants,  etc 749 

Notice  of  application,  etc 749 

Form  of  notice 750 


ANALYSIS  OF  COI^TEKTS.  xxiii 

The  Petition  for,  etc 750 

Form,  prejudice  of  judge,  etc 750 

"        prejudice  of  inhabitants, 751 

When  application  may  be  made 751 

By  whom  made 752 

Part  of  plaintiffs  or  defendants 752 

Order,  granting  in  vacation 752 

Terms  and  conditions 753 

Costs  of  the  change 753 

When  to  be  paid 753 

Transcript,  Pax^ers,  etc 753 

To  WHAT  Court  changed,  etc 754 

Docketing  cause,  etc 754 

Irregularities  waived,  etc 754 


CHAPTER  XXIL 

CONTINUANCES. 

How  and  when  applied  for 755 

For  want  of  testimony,  etc 755 

Form  of  affidavit  for,  etc 7^6 

By  Reason  op  Amendment,  etc 7P0 

For  Want  op  Declaration,  etc 760 

Defendant  in  Military  Service 761 

Party  or  Counsel  in  Legislature 762 

On  Remanding  Cause  prom  Supreme  or  Appellate  Court 762 

Terms  may  be  Imposed 762 


CHAPTEE  XXIII. 

AMENDMENTS. 

Reform  rs  the  PrtACTicE,  by 764 

Amendments  generally 765 

Terms  upon  which  allowed 766 

Of  executions  when  allowed 766 

Of  returns  of  process,  when,  etc 766 

Of  records,  etc 767 

Before  final  judgment,  etc 767 

Of  pleadings  in  vacation,  etc 768 

Of  process  out  of  term ,  etc 768 

Of  errors  in  fact,  after  judgment 769 

Writ  of  coram  twhis  abolished 769 

Other  statutory  provisions 769 


XXIV  ANALYSIS  OF  CONTENTS. 


CHAPTER  XXIY. 

EVIDENCE. 

Mode  op  Produciug,  etc 771 

Documentary,  etc 771 

Form,  notice  to  producp.  on  trial 772 

Oral  Testimony  of  Witnesses,  etc 773 

Attendance  of  witness,  how  procured 773 

Form,  praecipe /or  subpoena/or  icitnesses 773 

Tender  of  fees,  when  required 774 

Haheas  corpus  ad  test 774 

Depositions 775 

When  they  may  be  taken 775 

Witnesses  residing  in  another  county,  etc 775 

Form,  affidavit  to  he  filed,  etc 775 

**      notice  to  he  given,  etc 776 

Of  witness  residing  in  State,  non-resident  witnesses,  etc 778 

Form,  of  notice  and  interrogatories,  etc 779 

Of  non-resident  witnesses  upon  oral  interrogatories 780 

«    Notice  by  mail,  etc , 781 

Instructions  for  Taking  Depositions 781 

Form,  of  caption,  etc 781 

"      of  certificate,  etc 782 

(See  observations  following  each  form.) 

CHAPTER  XXY. 

JURY. 

Wno  are  Competent  Jurors 786 

Who  are  Exeacpt,  as 786 

Challenges  op  Jurors 787 

To  the  array 787 

To  the  polls 788 

For  cau«e 788 

Peremptory,  etc 790 

Polling  the  Jury 791 

CHAPTER  XXVL 

TRIAL  AND  VERDICT. 

Who  may  Open  the  Case 792 

Order  of  Proceedings  in  the  Trial 792 


ANALYSIS  OF  CONTENTS.  xxv 

Deliberation  of  the  Juky 794 

Delivery  of  the  Verdict,  etc 795 

Verdicts,  etc 796 

General  verdict,  etc 796 

Special  verdict,  etc ' 797 

CHAPTER  XXVII. 

NEW  TRIALS. 

Grounds  for  Granting  Ne-w  Trials 798 

Misbehavior  of  party  prevailing 798 

Mistakes  or  misconduct  of  jury,  etc 799 

Verdict  against  the  law  and  evidence 800 

Excessive  or  inadequate  damages 801 

Admitting  improper  or  refusing  proper  evidencs 801 

Error  in  the  charge  to  the  jury 802 

Newly  discovered  evidence 804 

Absence  or  mistake  of  witnesses 805 

Surprise,  etc 806 

Statutory  provisions 807 

Mode  op  Applying  for'  New  Trial 808 

Form  of  motion  for 808 

Setting  aside  Default,  and  Granting  Trials  on  Merits 809 

CHAPTER   XXYHL 

aerest  of  judgment. 

Wlien  it  will  or  will  not  be  arrested 811 

Time  and  manner  of  moving  in  arrest 813 

CHAPTER  XXIX. 

JUDGMENTS. 

Nature  and  effect  of,  etc 814 

Interlocutory  or  final,  etc 814 

By  default,  etc 815 

Assessments  of  damages  by  the  court 815 

May  be  referred  to  clerk  to  assess 815 

Either  party  may  require  a  jury 815 

Writ  of  inquiry,  etc 816 

Of  non-suit,  etc 818 

Effect  of,  etc 818 

•  Judgment  on  demurrer 819 

Judgment  on  verdict 819 

Form  of  judgment,  etc 819 


XXVI  ANALYSIS  OF  CONTENTS. 


CHAPTER  XXX. 

CONFESSION"  OF  JUDGMENT. 

Nature  and  effect  of,  etc 822 

May  be  entered  in  vacation 822 

I\IocIe  of  obtaining,  etc 823 

Form,  proof  of  tvarrant  of  attorney 823 

"       cognovit 824 

Power  of  courts  over  judgments  by,  etc 825 

CHAPTER  XXXI. 

BILLS  OF  EXCEPTIONS. 

Objections  to  decisions  of  court  preserved  by,  etc 829 

When  exceptions  must  be  taken 830 

Signing  and  sealing  of  the  bill,  etc 880 

What  the  bill  should  contain,  and  when  necessary 833 

Form  of  hill,  to  evidence,  instructions,  etc 836 

"      same,  refusal  to  grant  a  continuance 838 

CHAPTER  XXXII. 

REFEREES. 

Referring  causes  by  agreement 839 

Power  of  court  discretionary 839 

Proceedings  must  conform  to  the  statute 839 

Report  of  referee 840 

Exceptions  taken  thereto 840 

"When  to  be  made 840 

Witnesses  required  to  attend 841 

Referee  may  administer  oaths 841 

Judgment  upon  report 841 

Referee's  fees,  costs,  etc ." 841 

Testimony  taken  to  be  reported,  etc 841 

Shall  form  p?rt  of  record 841 

Form,  agreement  to  refer 841 

"       order  a]}j)ninting  referee 842 

"      report  of  referee,  for  2}l<iinfiff. 842 

"      report  of  referee,  for  defendant 843 

"      exception  to  report 843 


ANALYSIS  OF  CONTENTS.  xxvii 


CHAPTER  XXXIII. 

SUBMISSION  TO  JUDGE. 

Statute  relating  thereto S44 

Submission  to  be  oral 844 

Without  formal  pleadings 844 

Agreement  to  submit  to  be  in  writing 844 

Form,  agreement  to  suhniH 844 

Judge  to  determine  such  controversies  in  summary  m.uin  :r 845 

Judgment  or  decree   to  be  final  and  conclusive 845 

No  appeal  allowed  therefrom 845 

CHAPTER  XXXIY. 

AGREED  CASES— QUESTIONS  0?  LAW  CERTIFIED. 

Agreed  Cases 846 

Certified  to  Supreme  or  Appellate  Court 846 

Statutory  provision,   etc 846 

Agreed  case   must  not  be  feigned 846 

Must  first  be  decided  in  trial  court 846 

Questions  of  Law  Certified 847 

Judges  may  certify 847 

Statutory  provisions 847 

Exceptions  to  statute  provisions 847 

What  certificate  must  contain 847 

Form,  agreed  case  between  parties  in  suit  pending 848 

"      decision  of  court  upon  an  agreed  case 849 

"      agreement  that  judge  may  certify  questions  of  loic 850 

"       agreement  as  to  questions  of  Jaw 850 

"       certificate  of  judge  of  questions  of  law,  etc.,  etc 850 

"       agreement  as  to  questions  of  laio  arising  in  the  case 850 

"       decision  of  the  judge  upon  the  questions  of  law  arising  in 

case  finally  determined 851 

Rule  20  of  Supreme  Court  relating  to  agreed  ca«es 855 

Form,  affidavit  as  to  good  faith 855 

CHAPTER  XXXY. 

ARBITRATION  AND  AWARD. 

Nature  of  'the  proceeding,  etc 857 

Statutory  Submission — 857 

In  Suit  Pending 857 


XXVIII  ANALYSIS  OF  CONTENTS. 

Proceedings  by  arbitrators 858 

Oath  of  arbitrators 858 

Suhj^'frnas  for  witnesses — swearing  witnesses 860 

The  hearing 860 

The  award — publication  of 861 

Prima  facie  an  award  is  valid 862 

Either  party  not  complying,  award  may  be  filed  in  court,    etc 862 

Judgment  upon    award 863 

Enforcement  of  an  award 863 

Award,  when  set  aside 864 

For  fraud  and  mistake 864 

Award  prepared  by  attorney  for  one  of  the  parties 867 

Signing  of  the  award 867 

When  court  may  correct  award 868 

When  motion  to  set  aside  or  modify  must  be  made 868 

Error  and  appeals 869 

Compensation  of  arbitrators 869 

Fees  of  witnesses,  etc 869 

Arbitrators  may  be  compelled  to  act 869 

Record  of  reference 870 

In  Contkoversies  not  in  Suit 870 

Statutory  provisions  relating  to 870 

Construction  of  the  statute ^ 870 

Proceedings  under  section  16 , 871 

Award  under  section  16 871 

Common  Law  Submission 871 

Differs  from  statutory  submission ' 871 

How  submitted 872 

Revocation  of  submission 873 

Who  may  be  arbitrators 874 

General  powers  and  duties  of  arbitrators 874 

Recommitting  an  award 875 

Forms  of  Submission,  etc 876 

Form,  agreement  to  submit  in  suit  2'>ending 876 

"       same,  each  party  to  select  o)ie  arbitrator,  and  the  court  the 

third 876 

"      order  referring  snit  jycnding  to  arbitrators 877 

"       oath  of  arbitrators .' 877 

"       aivard  in  suit  j^^nding 877 

'•      agreement  of  submission  of  a  controversy  not  in  suit 878 

"       award  in  a  controversy  not  in  suit  (statutory)  under  Sec.  16  878 
"      general  agreement  for  subinission  of  all  matters  in  contro- 
versy, (Com.  Law . ) 879 

"       agreement  for  submission  of  particular  matters  in  contro- 
versy, (Com.  Law.) 879 

"       arbitration  bond,  given  by  each  party  to  the  other 880 

"       award  on  common  law  submission,  by  single  arbitrator 881 

*•      same,  by  three,  or  more  or  less,  arbitrators 881 


ANALYSIS  OF  CO^s^TENTS.  xxtx 


CnAPTER  XXXYL 

MISCELLANEOUS  FORMS. 

AssrjrpsiT — Dect,\t!Atio>;s  in 882 

Form,  covinieiicetiienf  and  conclusion  of  a  declarntion 882 

"       common  counts  condensed 882 

"       on  promise  to  he  account  ahh  for  goods  sold  to  a  third  person  883 
"      on  promise  to  pay  monejj  as  difference  in  exchancfe  of^jrop- 

ertij 884 

•'       on  written  contract  for  employment,  etc 885 

"       same,  on  verbal  contract 885 

Pr.EAs  IN 886 

Form,  another  action  pending 886 

total  failure  of  consideration  of  note,  given  for  J  ecs 887 

Replication  to  Pleas 888 

Form,  to  plea  of  another  action  pending 888 

"      to  plea  of  judgment  recovered 888 

"       double  replication 889 

"       of  statute  of  limitations  to  2)lea  of  set-off 889 

"       to  plea  of  aivard 889 

"       to  plea  of  arbitrament,  denying  the  cuvard 889 

"       to  plea  that  note  was  for  money  icon  at  gaming 890 

Rejoinders  to  Replications 890 

Form,  commencement  of  rejoinder  to  replication  to  a  sp>ecial  plea.  890 

"       conclusion,  with  rerif  cation 891 

"       to  double  replication 891 

"       to  replication  to  a  plea  of  award 891 

"       similiter  to  replication  concludiny  to  the  country 891 

In  Debt — Declaration 892 

Form,  to  recover  delinquent  taxes,  by  the  piople 892 

Plea 893 

Form,  eviction  in  action  by  landlord  vs.  tenant 893 

Replication — Denying  eviction 893 

I N  Action  of  Case 894 

Dec^.a  rations 894 

Form,,  against  commissioners  of  highways  for  flooding  land  by  a 

ditch,  etc 894 

"      for  negligence  in  setting  fire  to  prairie 895 

"      for  deceit  in  sale  of  mattress  infected  with  rerniin 896 

In  Trespass — Declaration 897 

Form,  for  shooting  plaintiff's  dog 897 


PUTERBAUGH'S 

COMMON     LAW 

Pleading  AND  Practice. 


CHAPTER  I. 

GENERAL    PRINCIPLES    OF    PLEADING. 

The  important  object  to  be  attained  in  pleading  is  to 
bring  the  subject  matter  of  contention  in  an  action  to  an 
issue — to  a  point  where  a  matter  is  affirmed  on  one  side, 
and  denied  on  the  other — to  render  the  facts  in  each  party's 
case  plain  and  intelligible,  and  to  refer  the  points  at  issue 
to  the  court  and  jury,  with  all  possible  simplicity,  for  their 
decision. 

Outside  of  the  profession,  the  term  -pleading  is  most  gen- 
erally understood  to  be  the  forensic  argument  in  a  case  ;  it 
is,  however,  the  statement,  in  a  plain,  logical  and  legal 
form,  of  those  facts  which,  in  law,  show  the  justice  of  the 
demand  made  by  the  plaintiiT,  or  the  discharge  and  defense 
of  the  defendant. 

It  is  the  formal  mode  of  alleging  that  on  the  record  which 
is  the  basis  of  the  action,  or  the  ground  of  defense. 

The  common-law  system,  which  is  retained  and  practiced 
in  many  of  the  states  and  territories  of  the  Union,  is  one  of 
great  antiquity. 

VOL.    I 3 


34  GENERAL  PRINCIPLES. 

General  principles  of  pleading. 

Anciently,  all  pleadings  were  delivered  orally,  and  in 
open  court,  and  were  contemporaneously  entered  on  the 
record.  This  mode  was  in  use  in  the  reign  of  Henry  III. 
In  later  times  the  pleader  entered  his  statement  in  the  first 
instance  upon  the  parchment  roll,  on  which  the  record- used 
to  be  drawn  up ;  the  opposite  party,  having  access  to  this 
roll,  entered  his  answer  in  the  same  manner,  and  so  on, 
until  an  issue  was  presented  ;  and  the  roll  thus  formed  the 
record  of  the  cause.  This  method  being  attended  with 
many  inconveniences,  the  expedient  was  at  length  adopted 
of  putting  the  pleadings  first  on  paper,  and  filing  them  in 
the  proper  office  of  the  court.  Written  pleadings  are  sup- 
posed by  many  writers  to  have  been  introduced  in  the  reign 
of  Edward  III.  The  abandonment  of  the  practice  of  oral 
pleading  led  to  no  departure  from  the  ancient  style  of  alle- 
gation. The  pleadings  have  ever  since  continued  to  be 
framed  upon  the  same  principles,  and  pursue  the,  same 
forms,  as  when  they  were  merely  oral.  The  parties  are 
made  to  come  to  issue  exactly  in  the  same  manner  as  when 
really  opposed  to  each  other  in  verbal  altercation  at  the  bar 
of  the  court ;  and  all  rules  which  the  judges  of  former  times 
prescribed  to  the  actual  disputants  before  them  are,  as  far 
as  possible,  still  enforced  with  respect  to  these  paper  plead- 
ings. 

Pleading  is  said  to  have  been  first  methodically  formed, 
and  cultivated  into  a  science,  in  the  reign  of  Edward  I. 
From  that  time,  the  judges  began  to  prescribe  and  enforce 
certain  rules  of  statement,  of  which  some  had  been  estab- 
lished at  periods  considerably  more  remote,  and  others  ap- 
parently were  then,  from  time  to  time,  first  introduced. 
The  science  continued  to  advance  till  the  reign  of  Henry 
VI.  and  Edward  IV.,  when  it  was  "cultivated  with  so  much 
industry  and  skill,  that  it  was  raised  to  a  sudden  perfection 
in  the  course  of  a  few  years."  But  Lord  Coke  and  Sir 
Matthew  Hale  refer  to  the  reign  of  Edward  III.  as  the  period 
when  pleading  had  attained  its  highest  point  of  excellence. 

Actions  are  either  real,  -personal^  or  mixed.     Real  ac- 


GENERAL  PRINCIPLES.  35 

Division  of  actions,  etc. 

tions  are  those  where  a  party  claims  title  to  have  any  lands, 
tenements,  rents,  commons,  or  other  hereditaments,  in  fee- 
simple,  fee-tail,  or  for  term  of  life;  by  which  actions,  for- 
merly, all  disputes  concerning  real  estate  were  determ- 
ined. 

Personal  actions  are  those  where  a  man  claims  a  debt, 
or  personal  property,  or  damages  in  lieu  thereof;  where  he 
seeks  the  recovery  of  a  specific  personal  chattel,  or  a  satis- 
faction in  damages  for  a  breach  of  a  contract,  or  for  some 
injury  to  person  or  property.  Personal  actions  are  divided 
into  actions  ex  contractu,  and  actions  ex  delicto.  Actions 
ex  contractu  are  principally  assumpsit,  debt,  covenant,  ac- 
count, and  detinue;  and  those  ex  delicto  are  case,  trover, 
replevin,  and  trespass. 

Mixed  actions  are  those  partaking  of  the  nature  of  real 
and  personal  actions,  and  are  generally  brought  for  tlie  re- 
covery of  real  property,  and,  also,  for  damages  for  detention 
or  injury  thereof,  as  for  instance  the  action  of  ejectment,  or 
waste,  or  quare  inipcdit. 

Lender  these  three  heads  may  every  species  of  remedy  by 
suit  in  the  courts  of  common  law  be  comprised. 

The  forms  of  action  commonly  resorted  to  for  the  redress 
of  civil  injuries  are  assumpsit,  account,  debt,  covenant, 
detinue,  case,  replevin,  trespass,  trover,  and  ejectment. 
These  remedies  are  drawn  from  the  common  law  of  Eng- 
land, as  being  the  best  known  methods  of  appealing  to 
public  authority  for  the  redress  of  private  wrongs.  By 
statutory  enactment,  many  of  the  states  have  adopted  the 
common  law  of  England,  and  all  statutes  of  the  British 
Parliament,  of  a  general  nature,  in  aid  thereof,  prior  to  tlie 
fourth  year  of  King  James  I.  Many  of  these  forms  of  ac- 
tion have  been  modified  by  subsequent  legislation,  and  some 
peculiar  statutory  remedies  have  been  introduced  ;  but  in 
general  the  great  leading  features  of  the  common  law,«  in 
relation  to  the  mode  of  obtaining  redress  of  private  injuries 
by  actions  at  law,  still  prevail  in  most  of  the  United  States. 


36  GENERAL  PRINCIPLES. 

Course  of  pleading. 

In  Illinois  the  distinction  between  the  actions  of  trespass 
and  trespass  on  the  case  has  been  abolished  by  a  recent 
statute,  (a) 

The  pleadings  in  a  cause  are  commenced,  on  the  part 
of  the  plaintiff,  with  the  declaration^  which  is  a  statement 
in  writing  of  his  cause  of  action,  in  legal  form.  This  dec- 
laration, as  every  other  pleading  in  the  cause,  is  required 
to  be  framed  agreeably  to  the  established  rules  and  forms 
of  pleading,  and  if  defective  in  any  particular,  either  in 
substance  or  form,  may  be  objected  to,  as  insufficient  in  law, 
by  deimirrer^  on  the  part  of  the  defendant ;  or  he  may  al- 
lege some  matter  in  abatement  of  the  action,  or  may  deny 
the  declaration  to  be  true  in  point  of  fact,  or  may  set  up 
matter  in  avoidance  of  it — such  answer  on  the  part  of  the 
defendant  being  technically  denominated  his  ^lea.  To  the 
defense  thus  made,  the  plaintiff  may  again,  in  his  turn, 
rc^ly^  either,  in  case  of  a  demurrer,  by  reasserting  his 
declaration  to  be  sufficient  in  law  to  support  his  action,  and 
referring  that  question  to  the  judgment  of  the  court,  which 
is  termed  a  joinder  in  demurrer ;  or,  in  case  of  a  special 
plea,  he  may  on  his  part  demur  to  such  plea,  as  insuffi- 
cient in  law  to  constitute  a  defense  ;  or  he  may  deny  it  to 
be  true  in  point  of  fact,  or  allege  some  new  matter  in 
avoidance  of  it,  according  to  the  circumstances — such 
answer  being  styled  a  replication.  To  the  replication 
the  defendant  may  either  demur  upon  the  law,  or  oppose 
a  rejoinder  as  to  the  fact ;  and  to  the  rejoinder  the  plaint- 
iff may  demur,  or  oppose  a  surrejoinder  ;  and  so  the  parties 
may  proceed,  by  a  system  of  alternate  allegation  and  ob- 
jection, denial  or  evasion,  technically  termed  the  plead- 
ings, until  they  arrive  at  an  issue,  that  is,  some  spe- 
cific point  of  law,  or  fact,  affirmed  on  one  side   and  de- 

{a)  Rev.  Stat.  1877,  p.  737;  80  111.  205;  77  111,  603;  76  111.  224. 


GENERAL  PRINCIPLES.  37 

Course  of  pleading. 

nied  on  the  other,  and  presenting  the  exact  question  for  the 
court  or  jury  to  determine. 

The  manner  of  forming  these  issues,  and  the  precedents 
to  be  used  in  each  step  of  the  pleadings  in  each  form  of 
action,  will  be  considered  and  pointed  out  in  the  subsequent 
chapters. 


3S  COMMENCEMENT  OF  AN  ACTION. 

PrcBcipe. 


CHAPTER  II. 

COMMENCEMENT    OF    AN    ACTION. 

The  Praecipe. — In  general,  the  issuing  of  the  writ  is 
the  commencement  of  the  suit  {g) ;  but  it  is  usual  for  the 
attorney  of  the  plaintiff'  to  iile  with  the  clerk  of  the  court  a 
p)'£Bcipe,  or  order,  directing  such  process  to  be  issued 
against  the  defendant  as  the  nature  of  the  case  may  require. 
The  prcBcipe  should  specify  the  court,  the  fiamcs  of  the 
■parties,  the  kind  of  action,  the  kind  of  writ,  and  when  it 
is  to  be  made  returnable  ;  and  the  amount  of  debt  and 
damages,  in  case  of  debt,  and  of  damages  in  other  actions. 

The  damages  claimed  in  the  prcecife  should  be  large 
enough  to  cover  the  amount  due ;  for  if  the  judgment  ob- 
tained is  greater  than  the  damages  claimed,  it  will  be 
error,  (z)  Where  however  the  verdict  or  finding  is  for 
more  than  the  amount  claimed,  the  excess  may  be  remitted 
before  or  at  the  time  of  entering  judgment.  But  where  the 
ad  dammim,  by  mistake,  is  made  too  small,  as  appears  by 
computation  of  the  sum  laid  in  the  declaration,  the  same 
may  be  amended,  even  after  verdict. 

Where  suit  is  brought  by  or  against  administrators, 
executors,  guardians,  and  the  like,  they  should  be  so  de- 
scribed in  the  prcecipe ;  and  care  should  be  taken  to  give 
proper  descriptions  to  the  parties  to  the  suit,  and  other  par- 
ticulars, as  a  variance  between  the  writ  and  declaration  as 
to  the  parties,  cause  of  action,  or  amount  of  damages  al- 

(g)  I  Scam.  30;    15  Mass.  359;  104  111.  71  ;  9  Bradw.  472;    15  Bradw.  236; 
18  Johns.  14;  3  Black.  Com.  273,  285  ;  7  Term,  4. 

(0  7  Dunford  &  East.  133;  7  East;  33  111.  388;  36  111.  373;  37  111.  24. 


COMMENCEMENT  OF  AN  ACTION.         39 

Bond  for  costs. 

leged,  will  be  ground  for  a  plea  in  abatement,  or,  in  some 
cases,  for  a  motion  to  quash.  (J) 

But  where  a  suit  is  instituted  in  the  individual  names  of 
school  directors,  in  reference  to  a  matter  in  which  they  are 
only  interested  in  their  corporate  capacity,  the  court  will 
allow  the  title  of  the  cause  to  be  amended  by  striking  out 
the  individual  names  of  the  directors,  and  substituting  their 
corporate  name,  {k) 

Corporations  should  be  described  in  all  legal  proceedings 
by  their  corporate  names.  (/) 

If  a  promise  is  made  to  or  by  a  corporation  or  person  by 
a  wrong  name,  the  action  should  be  brought  in  the  right 
name,  setting  forth  the  facts  in  the  declaration ;  but  other- 
wise where  a  specialty  is  entered  into  by  a  wrong  name,  {m) 

The  cautious  pleader  will  generally  file  a  ^rcecfpe,  as  a 
guide  to  the  clerk  in  preparing  the  summons ;  and  then  if 
the  writ  should  happen  to  be  erroneous,  the  fault  may  be 
amended  by  the  prcecipe;  (q)  although  it  is  not  essential 
to  the  proper  and  legal  issuing  of  the  summons  that  a 
prcecipe  should  be  filed  at  all. 


SECURITY  FOR  COSTS  BEFORE  COMMENXIXG  SUIT. 

When  required. — The  statute  provides,  "  that  in  all  actions 
in  any  court  of  record  on  official  bonds  for  the  u>e  of  any  per- 
son, actions  on  the  bonds  of  executors,  administrators  or 
guardians,  qui  tarn  actions,  actions  on  a  penal  statute  and 
in  all  cases  in  law  or  equity,  where  the  plaintiff,  or  person  for 
whose  use  an  action  is  to  be  commenced,  shall  not  be  a  resi- 
dent of  this  State,  the  plaintiff  or  person  for  whose  use  the 
action  is  to  be  commenced,  shall,  before  he  institute  such  suit, 

(y)  Breese,  331,  378;  2  Wheat.  45;  4  Halst.  2S4;  5Gilm.  75;  11  111.  573; 
12  111.  202;  17  111.  529;   18  111.  273;  20  III.  46;  36  111.  373;  52  111.  iSo. 

{^k)  32  111.  290. 

(/)  15  111.  1S5;  I  Chitty  PI.  256. 

(;«)  I  Mete.  359,  473;  I  Mass.  360;  i  Chit.  PI.  223,  224;  3  Taunt.  504; 
Gould's  PI.  241. 


40  COMMENCEMENT  OF  AN  ACTION. 


Bond  for  costs. 


file  or  cause  to  be  filed,  with  the  clerk  of  the  court  in  which 
the  action  is  to  be  comaienced,  security  for  costs."  (r) 

The  statute  applies  to  a  writ  of  error  sued  out  of  the  Su- 
preme or  Appellate  Courts;  [s)  it  applies  to  attachment,  as 
an  attachment  bond  does  not  satisfy  this  statute;  (^)  and  to 
non-resident  landlords  issuing  distress  warrants  for  rent ;  (tt) 
if  an  action  is  brought  by  a  non-resident  for  the  use  of  a 
resident ;  (v)  or  by  two  plaintiffs,  one  of  whom  is  a  resident 
and  solvent ;  {zv)  or  in  a  bastardy  proceeding,  {x} 

No  security  for  costs  is  required. 

In  an  action  brought  in  the  name  of  the  people  for  the  use 
of  a  county  to  recover  a  penalty  for  obstructing  a  public 
highway  no  bond  for  costs  is  necessary,  (y) 

S?dts  by  inbwrs  by  7iext  friend. — In  section  i8  of  chapter  64, 
entitled  "  Guardian  and  Ward,"  {£)  it  is  provided  that  suits 
may  be  commenced  by  any  minor  by  his  next  friend,  on  such 
next  friend  entering  into  bond  for  costs,  and  filing  the  same 
in  the  court  where  such  action  may  be  instituted. 

Fonii  of  security  for  costs. — The  statute  requires  that  the 
security  to  be  given  before  the  commencement  of  the  suit, 
shall  be  substantially  in  the  following  form  : 

A.  B.      ^ 
vs.         y      {Title  of  Couii.) 

C.  D.      j 

I  (E.  F.)  do  enter  myself  security  for  all  costs  which  may 
accrue  in  the  above  cause. 

Dated  this day  of- ,  A.  D.  18 — . 

{Signed)  E.  F.  {a) 

(r)  I  Starr  &  Curtis'  An.  Stat.  635;  Rev.  Stat.  (1S77)  295  ;  13  111.  344;  ii 
111.  119;  I  Scam.  581  ;  5  Gilm.  21  ;  14  111.  7 1  ;  24  111.  626;  53  III.  306;  85 
111.   336. 

(.v)  32  111.  474  ;   2  Gilm.  381  ;  5  Gilm.  20. 

(/)  36  111.  474. 

()/)    16  111.  291. 

(v)   I  Scnm.  581. 

{w)  24  111.  226. 

[x]  85  111.  336. 

(y)  9  Bradw.  39. 

[z]   I  Starr  &  Curtis'  An.  Stat.  1241 ;   Laws  of  1881,  page  gS. 

[a)   I  Starr  &  Curtis'  An.  Stat.  635  ;   Rev.  Stat.  (1877)  297. 


COMMENCEMENT  OF  AN  ACTION.  41 

Bond  for  costs. 

Surety — Approval  and  effect  of  bond. — Such  instrument  is 
required  to  be  signed  by  some  responsible  person,  a  resident 
of  this  State,  to  be  approved  by  the  clerk,  and  binds  such 
person  to  pay  all  costs  which  may  accrue  in  such  action, 
either  to  the  opposite  party,  or  to  any  of  the  officers  of  the 
court,  in  which  the  action  is  commenced,  or  to  which  it  may 
be  removed  by  change  of  venue  or  appeal ;  {b)  a  bond  for 
costs  covers  all  costs  without  reference  to  the  person  to 
whom  they  may  accrue,  (f) 

It  was  held  under  a  former  statute,  that  the  security  is  not 
bound  for  costs  made  against  his  principal  in  the  Supreme 
Court  on  appeal,   {d) 

Dismissal  for  zvant  of  security  for  co^ts. — If  a  suit  is  com- 
menced without  filing  such  security,  the  court  on  motion  will 
dismiss  the  suit  at  the  costs  of  the  attorneys,  unless  such  se- 
curity shall  be  filed  within  such  time  as  shall  be  allowed  b}^ 
the  court,  and  when  so  filed,  it  will  relate  back  to  the  com- 
mencement of  the  suit ;  and  the  right  to  require  security  for 
costs  will  not  be  waived  by  any  pleading  or  other  proceeding 
in  the  case;  {e)  but  a  lack  of  a  bond  for  costs  can  not  be  ob- 
jected to  for  the  first  time  in  the  Supreme  or  Appellate 
Court,  (/j 

Motion  to  dismiss  for  want  of  security  for  costs. — To  sup- 
port a  motion  to  dismiss  a  suit  for  want  of  security  for  costs, 
on  the  ground  that  the  plaintiff  was  a  non-resident,  the 
defendant  must  file  an  affidavit,  sufficient  to  negative  the  fact 
that  the  plaintiff,  or  person  for  whose  use  the  suit  is  brought, 
was  a  resident  at  the  time  of  the  commencement  of  the 
suit,   {g) 

(i>)   Rev.  Stat.  (1877)  297  ;    i  Starr  &  Curtis'  An.  Slat.  636. 

(c)  53  111-  247- 

{d}  28  111.  112. 

(e)   I  Starr  &  Curtis'  An.  Stat.  637  ;  Rev.  Stat.  (1S77)  297  ;  6  Bradw.  539. 

(/)  92  111.  395- 

(g)  25  111.  5S7;   36  111.  206;  51  111.  306. 


42  COMMENCEMENT  OF  AN  ACTION. 

Costs, 

Rule  to  file  security. — Upon  a  motion  to  dismiss  a  suit  for 
want  of  security  for  costs,  if  the  plaintiff  is  shown  to  have 
been  a  non-resident  at  the  time  of  the  commencement  of  the 
suit,  the  court  will  enter  a  rule  on  the  plaintiff  to  file  security 
within  such  time  as  may  be  fixed  by  the  court.  The  suit 
should  not  be  dismissed  without  giving  such  time.  {Ji) 

Where  the  motion  is  based  on  the  ground  that  the  action 
is  upon  a  penal  statute,  and  that  no  security  was  given,  the 
court  may  permit  the  plaintiff  to  file  a  bond  for  costs,  after  a 
motion  to  dismiss  for  want  of  such  security.   (/) 

Cross-motion. — On  amotion  to  dismiss  for  want  of  security 
for  costs,  the  better  practice  is  for  the  plaintiff  to  file  a  cross- 
motion  for  leave  to  supply  such  security,  and  it  will  be 
granted. 

Objections  to  security. — Where  the  security  to  a  bond  for 
costs  is  objected  to,  it  is  incumbent  on  the  party  presenting 
it  to  satisfy  the  court,  by  competent  proof,  that  it  is  suf- 
ficient.  (7) 

Plaintiff  a  poor  person. — If  any  court  shall,  before  or  after 
the  commencement  of  any  suit,  be  satisfied  that  the  plaintiff 
is  a  poor  person  and  unable  to  pay  costs  and  the  expenses 
thereof,  the  court  may  permit  him  to  commence  and  prose- 
cute his  action  as  a  poor  person,  without  costs.  Allowing 
the  plaintiff  to  sue  as  a  poor  person  or  requiring  security  for 
costs,  is  discretionary  with  the  trial  court.  {Ji) 

Affidavit  of  poor  person. — If  prior  to  the  convening  of  any 
term  of  any  court  of  record,  a  person  desiring  to  commence 
suit  in  such  court  shall  file  with  the  clerk  thereof  an  affidavit, 
stating  that  he  is  a  poor  person  and  unable  to  pay  costs,  and 

{K)   13  Bradw.  539. 
[i)   100  111.  390;  83  111.  568. 
(/)  3  Gilm.  97. 

{k)  I  Starr  &  Curtis'  An  Stat.  63S;  Rev.  Stat.  (1S77)  29S ;  30  III.  43  ;  9 
Bradw.  229. 


COMMENCEMENT  OF  AN  ACTION.  43 

Bail  in  civil  cases — Capias  ad  Respondendtim. 

that  his  cause  of  action  is  meritorious,  such  clerk  shall  issue 
and  the  sheriff  shall  serve  all  necessary  process  without  re- 
quiring costs.    (/) 

See  Chapter  YS^,  post,  pages   745,  748,  entitled   "  Security 
for  Costs." 

BAIL  IN  CIVIL  CASES CAPIAS  AD  RESPONDENDUM. 

The  first  section  of  the  Illinois  statute  concerning  bail  in 
civil  cases,  in  force  from  and  after  July  i,  1872,  provides, 
that  w^hen  any  person  shall  be  about  to  commence  a  suit  in 
any  court  of  record  in  the  state,  founded  upon  any  specialty, 
bill  or  note  in  writing,  or  on  the  judgment  of  any  court, 
and  in  all  actions  of  covenant  and  account,  and  actions  on 
verbal  contracts  or  assumpsits  at  law,  if  the  plaintiff,  or  his 
agent  or  attorney,  shall  make  an  affidavit  setting  forth  the 
cause  of  action,  and  the  amount  due  the  plaintiff,  and  facts 
showing  that  the  defendant  fraudulently  contracted  the  debt, 
or  incurred  the  obligation,  respecting  which  the  suit  is 
about  to  be  brought,  or  that  he  has  concealed,  assigned, 
removed,  or  disposed  of  his  property  with  intent  to  defraud 
such  plaintiff,  and  shall  present  such  affidavit  to  a  judge  of 
a  court  of  record,  or  if  there  be  no  such  judge  in  the 
county  at  the  time,  then  to  a  master  in  chancery  ;  and  if 
such  judge  or  master  shall  be  satisfied  that  sufficient  cause 
is  shown  to  require  bail — he  shall  indorse  an  order  under 
his  hand,  on  such  affidavit,  directing  the  clerk  of  the  court 
in  which  suit  is  about  to  be  brought  to  issue  a  capn'as  ad  re- 
s^ondcndtmi,  directed  to  the  proper  officer  to  execute,  for  the 
arrest  of  the  defendant  or  defendants  in  such  proposed 
action  ;  and  the  judge  or  master  shall,  in  sucli  order,  fix 
the  amount  of  the  bail  ;  and  upon  the  filing  of  such  affidavit 
and  order,  it  shall  be  the  duty  of  the  clerk  to  issue  a  capias., 
and  indorse  thereon  an  order  directing  the  sheriff  or  officer 
to  whom  such  process  is  directed  to  hold  the  defendant  to 
bail  in  the  sum  specified  in  such  order,  and  the  sheriff  or 
officer  serving  such  process  shall  take  bail  accordingly. 

(/)   I  Starr  &  Curtis'  An.  Stat.  638;  Rev.  Stat.  (1S77)  298. 


44  COMMENCEMENT  OF  AN  ACTION. 

Bail  in  civil  cases — Capias  ad  respondendum. 

Actions  sounding  merely  in  damages. — ^The  second  sec- 
tion provides,  that  in  actions  sounding  merely  in  damages, 
where  the  same  can  not  be  ascertained,  the  affidavit  shall 
also  set  forth  the  nature  and  cause  of  the  action,  with  the 
substantial  or  chief  facts  in  relation  thereto,  and  that  the 
affiant  verily  believes  that  the  benefit  of  whatever  judg- 
ment may  be  obtained  will  be  in  danger  of  being  lost  un- 
less the  defendant  is  held  to  bail ;  and  if  upon  examination 
thereof,  the  judge  or  master  shall  be  satisfied  that  sufficient 
cause  is  shown  to  require  bail,  he  shall  make  an  order 
thereon,  specifying  in  what  amount  the  defendant  shall  be 
required  to  give  bail,  and  like  proceedings  shall  be  had 
thereon  as  provided  in  section  one  of  the  same  act,  and  the 
officer  serving  the  process  shall    in  like  manner   take  bail. 

Plaintiff  to  give  bond. — The  third  section  requires  that 
the  judge  or  officer  ordering  the  issuing  of  such  capias 
shall  require  bond  of  the  plaintiff  in  a  penal  sum  of  double 
the  amount  sued  for,  with  security  to  be  approved  by  the 
clerk  issuing  the  writ,  conditioned  that  the  plaintiff  shall 
prosecute  the  capias  with  effect  and  without  delay,  and  pay 
the  defendant  all  costs  and  damages  that  may  be  sustained 
by  the  wrongful  suing  out  of  such  capias.  And  no  capias 
shall  issue  until  such  bond  is  approved  and  filed  by  such 
clerk. 

Bail  bond. — The  fourth  section  provides, that  where  any 
writ  shall  have  been  issued  from  any  court  of  record  in  the 
state,  whereon  bail  is  required,  the  sherifi'  or  other  cffxer 
to  whom  the  same  may  be  directed,  shall  take  a  bail  bond 
to  himself,  with  sufficient  security,  in  a  penalty  of  double 
the  sum  for  which  bail  is  required.  The  form  of  the  con- 
dition of  such  bond  is  given  in  the  same  section,  and  is 
substantially  the  same  as  the  condition  of  the  "bail  bond 
in  civil  actions"  hereafter  given.  The  bond  so  taken  is  to 
be  returned  with  the  writ,  on  or  before  the  first  day  of  the 
term  of  the  court  to  which  the  writ  is  returnable.     The 


COMMENCEMENT  OF  AN  ACTION.  45 


Bail  in  civil  cases — Capias  ad  respondendum. 


officer  making  the  arrest  is  required  to  give  the  person  ar- 
rested reasonable  time  and  opportunity  to  procure  bail  be- 
fore committing  him  to  jail. 

WJio  may  become  hail. — The  fifth  section  provides  that 
no  person  shall  be  permitted  to  be  special  bail  in  any 
action,  unless  he  be  a  householder  and  resident  within  the 
state,  and  of  sufficient  property ;  and  no  counselor  or  attor- 
ney at  law,  sheriff,  under-sheriff,  bailiff,  constable,  or  other 
person  concerned  in  the  execution  of  process,  shall  be  per- 
mitted to  be  special  bail  in  any  action. 

Sheriff  may  administer  oath. — The  sixth  section  pro- 
vides, that  in  any  and  all  cases  where  the  sheriff  shall  be 
by  law  required  to  take  bail  upon  any  writ  or  process,  he 
shall  have  the  power  to  administer  oaths,  and  to  examine 
the  person  offered  as  bail,  touching  his  sufficiency,  and 
shall  require  such  examination  to  be  reduced  to  writing, 
and  signed  by  the  person  offered  as  bail. 

Sheriffs  liability. — Section  seven  provides  that  in  case 
the  sheriff  or  other  officer  executing  such  process,  and  to 
whom  it  shall  be  directed,  shall  neglect  to  take  such  bond, 
or  the  bail  be  held  insufficient,  on  exception  taken  and  en- 
tered of  record  during  the  term  to  which  such  writ  shall  be 
made  returnable,  the  sheriff  or  other  officer,  having  reason- 
able notice  of  taking  such  exception,  shall  in  either  case 
be  deemed  and  stand  as  special  bail  in  the  action,  and  the 
plaintiff  may  proceed  to  judgment  against  such  sheriff  or 
other  officer,  as  in  other  cases  against  special  bail. 

Insufficient  bail;  officer's  remedy;  exceptions.,  etc. — 
Section  eight  provides  that  where  the  bail  shall  be  adjudged 
insufficient  by  the  court,  the  bond  shall  in  that  case  stand 
as  a  security  to  the  sheriff  or  other  officer  executing  .such 
process,  who  may,  upon  a  forfeiture  of  the  condition  to  ap- 
pear and  perfect  bail,  proceed  thereon  in  an  action  of  debt 


46  COMMENCEMENT  OF  AN  ACTION. 


Bail  in  civil  cases — Ca-tias  ad  resfo7idendum. 


or  covenant,  to  recover  the  amount  of  whatever  damages 
he  may  have  sustained  by  reason  of  the  non-performance 
of  such  condition  ;  and  shall  also  have  the  same  right  to 
arrest  and  detain  the  principal  in  custody,  in  case  the  bail 
shall  be  adjudged  insufficient  by  the  court,  and  the  prin- 
cipal shall  not  perfect  bail  within  the  time  required  by  law, 
as  the  bail  might  have  had.  If  he  shall  elect  to  arrest  and 
commit  the  principal  to  prison,  then  his  remedy  on  the 
bond  shall  cease,  and  the  bond  be  void.  The  sufficiency 
of  the  bail  shall  be  excepted  to  during  the  term  to  which 
the  writ  is  returnable  ;  otherwise  the  same  shall  be  con- 
sidered as  accepted  by  the  plaintiff.  Objections  to  the  suf- 
ficiency of  bail  shall  be  decided  by  the  court  in  which  the 
exception  is  taken,  without  delay,  on  such  evidence  as  may 
be  produced,  and  as  it  may  deem  satisfactory  ;  and  the 
burden  of  proof  shall  lie  on  the  party  affn-ming  the  suffi- 
ciency, allowing  the  bail  to  be  examined  on  oath  or  affir- 
mation touching  his  sufficiency. 

Dischai'gc;  reduction  of  hail. — Section  nine  provides 
that  the  court  in  term-time,  or  the  judge  in  vacation,  may,  on 
application,  discharge  the  defendant  from  arrest  for  insuf- 
ficiency of  the  affidavit,  or  because  the  facts  stated  therein 
are  not  true,  or  for  other  good  cause  which  would  entitle 
him  to  be  discharged  upon  habeas  corpus;  or  in  case  he 
has  given  bail,  may  discharge  the  same,  or  reduce  the 
amount  thereof,  upon  good  cause  shown. 

Capias  to  stand  as  a  summons  when  defendant  or  bail 
is  discharged. — Section  ten  provides  that  in  case  of  a  dis- 
charge of  the  defendant  or  his  bail,  the  capias  shall  stand 
as  a  summons. 

Surrender  of  defendant. — By  the  eleventh  section,  the 
defendant  in  any  action,  in  any  court  of  record,  when  bail 
shall  have  been  given,  may  surrender  himself,  or  his  bail 
may  surrender  him,  at  any  time  before  the  return-day  of 


COMMENCEMENT  OF  AN  ACTION.  47 

Bail  in  civil  cases. 

the  process  which  may  have  been  sued  out  against  the  bail, 
to  the  court  in  which  the.  suit  may  be  pending,  during  the 
sitting  thereof,  or,  in  vacation,  to  the  sheriff  or  other  officer 
who  executed  the  capias. 

Record  of  stii'rcndcr  of  defendant. — The  twelfth  section 
requires,  that  in  case  the  surrender  be  made  during  the  sit- 
ting of  the  court,  an  entry  shall  be  made  on  the  records  of 
the  court,  stating  the  surrender  and  the  commitment  of  the 
defendant  to  the  custody  of  the  sheriff. 

Surrender  in  vacation. — Section  thirteen  provides,  that  if 
the  surrender  be  made  in  vacation,  the  bail  or  principal  shall 
obtain  a  certified  copy  of  the  bail-bond  from  the  sheriff  or 
clerk  of  the  court,  in  whosesoever  possession  the  same  may 
be,  and  shall  deliver  himself,  or  be  delivered  by  his  bail, 
to  such  sheriff,  who  shall  thereupon  indorse  on  such  copv 
an  acknowledgment  of  the  surrender  of  the  body  of  the 
defendant  to  his  custody,  and  the  defendant  shall  be  com- 
mitted to  the  jail  of  the  county,  there  to  remain  until  dis- 
charged by  due  course  of  law. 

Section  fourteen  provides  that  if  the  surrender  is  made 
pending  a  suit  against  the  bail,  the  copy  of  the  bond,  with 
the  acknowledgment,  shall  be  filed  in  the  office  of  the  clerk 
of  the  court  in  which  the  action  is  pending.  If  before  such 
suit,  the  same  shall  be  tiled  with  the  clerk  of  the  court  in 
which  the  original  action  was  brought. 

Bail  discharged,  when. — By  section  fifteen  it  is  pro- 
vided, that  upon  giving  notice  of  the  surrender,  whether 
made  in  term-time  or  vacation,  to  the  plaintiff  or  his  at- 
torney, and  paying  the  costs  of  the  action  against  the  bail, 
if  any  have  accrued,  the  bail  shall  be  discharged  from  all 
liability. 

Surrender  after  Judgment ;  effect  of,  etc. — The  six- 
teenth section  provides,  that  if  the  surrender  be  after  judg- 


48         COMMENCEMENT  OF  AN  ACTION. 

Bail  in  civil  cases. 

ment,  and  the  plaintiff  shall  not  cause  the  defendant  to  be 
held  on  execution  within  five  days  after  notice  thereof,  he 
shall  be  discharged  out  of  custody.  The  plaintiff  may, 
notwithstanding  such  discharge,  have  execution  against 
the  real  and  personal  estate  of  the  defendant. 

New  bail  may  be  taken. — The  seventeenth  section  pro- 
vides, that  any  defendant  surrendered  into  custody  or  com- 
mitted by  his  bail,  may,  at  any  time  before  final  judgment 
shall  have  been  rendered  in  the  action,  discharge  himself 
from  custod}^  by  giving  other  good  and  sufficient  special 
bail ;  and  the  sheriff,  or  other  officer  authorized  to  take 
bail,  shall  take  new  bail  to  the  same  effect  as  before  pro- 
vided in  the  act. 

Bail  may  arrest  principal. — By  the  eighteenth  section 
it  is  provided,  that  in  all  cases  of  bail,  under  this  act,  it 
shall  be  lawful  for  the  bail  to  arrest  and  secure  the  body  of 
the  principal,  until  a  surrender  can  be  made  to  the  sheriff 
of  the  county  where  the  suit  may  be  pending,  or  to  the 
court  to  which  the  process  was  returnable  ;  and  the  bail 
may,  by  indorsement  upon  a  duly  certified  copy  of  the  bail- 
bond,  authorize  any  other  person  to  arrest,  secure  and  sur- 
render the  body  of  the  principal. 

Prosecution  of  bail. — Section  nineteen  provides,  that  all 
bail  taken  according  to  the  directions  of  the  act  shall  be 
deemed  and  taken  as  special  bail,  and  may  be  proceeded 
against  by  proper  action,  in  the  name  of  the  obligee  for  the 
use  of  the  party  injured. 

No  suit  to  be  brought  on  bail-bond  until  return  of  Z2..  sa. — 
According  to  the  twentieth  section,  hereafter  no  suit  shall  be 
commenced  upon  any  bail-bond,  in  any  civil  action,  until  a 
writ  of  capias  ad  satisfaciendum  shall  have  issued  against 
the  defendant  in  the  original  action,  directed  to  the  sheriff  of 
the  county  in  which  such  defendant  was  arrested,  and  such 


COMMENCEMENT  OF  AN  ACTION.  49 


Bail  in  civil  cases. 


sherift^  shall  have  returned  that  the  defendant  was  not  found 
in  his  county ;  and  if  any  action  shall  hereafter  be  com- 
menced upon  such  bond,  and  it  shall  not  appear  upon  the 
trial  thereof  that  a  writ  of  capias  ad  satisfacie^idum  was 
issued  and  returned  in  the  manner  mentioned,  a  verdict 
shall  be  found  for  the  defendant.  It  shall  be  also  neces- 
sary, to  charge  the  bail,  that  such  writ  be  issued  and  deliv- 
ered at  least  ten  days  before  the  return-day  thereof,  to  the 
sheriff  of  the  county,  or  officer  to  whom  it  may  be  directed  ; 
and  such  sheriff  or  other  officer  shall  endeavor  to  serve 
such  writ  upon  the  defendant,  any  directions  which  he  may 
receive  from  the  plaintiff  or  his  attorney  to  the  contrary 
notwithstanding. 

Bail  may  obtain  judgment  against  -principal ,  by  motion. — 
The  twenty-first  section  provides,  that  in  all  cases  where 
judgment  shall  hereafter  be  entered  in  any  court  of  record 
in  the  state,  against  any  person  as  bail  for  another,  and  the 
amount  of  such  judgment,  or  any  part  thereof,  shall  be 
paid  or  discharged  by  such  bail,  his  executor,  etc.,  it  shall 
be  lawful  for  such  bail,  his  executor,  etc.,  to  obtain  judg- 
ment, by  motion,  against  the  person  for  whom  he  was 
bound,  for  the  full  amount  which  shall  have  been  paid  by 
such  bail,  his  executor,  etc.,  in  the  court  where  judgment 
shall  have  been  entered  against  such  bail.  Before  judg- 
ment shall  be  entered  against  the  principal,  ten  days'  pre- 
vious notice  of  such  motion  shall  be  given  to  him,  if  a  resi- 
dent of  the  state ;  and  if  a  non-resident,  then  notice  of 
such  motion  shall  be  published,  for  four  weeks  successively, 
in  some  newspaper  printed  in  the  county  in  which  the  pro- 
ceeding shall  be  had  ;  and  in  case  no  newspaper  shall  be 
published  in  such  county,  then  in  the  nearest  county  in 
which  a  newspaper  shall  be  published. 

Death    of  pi'incifal. — The  twenty-second  section  pro- 
vides, that  in  all  actions  against  bail,  it  shall  be  lawful  for 
tlie  bail  to  plead,  in  bar  of  such  actions,  the  death  of  the 
4 


50  COMMENCEMENT  OF  AN  ACTION. 

Bail  in  civil  cases. 

principal  before  the  return-day  of  the  process  against  the 
bail  ;  and  if  on  the  trial  of  any  such  issue,  the  death  of  the 
principal  shall  be  found  to  have  happened  before  such  re- 
turn-day, judgment  shall  be  given  in  favor  of  the  defend- 
ant ;  but  he  shall,  notwithstanding,  be  liable  to  judgment 
and  execution  for  the  costs  of  suit,  unless  such  death  shall 
be  found  to  have  taken  place  before  the  commencement  ot 
•the  action. 


Bail  discharged  where  -principal  taken  beyond  limits  of 
state,  for  crime,  etc. — Section  twenty-three  provides,  that 
if  any  defendant,  having  given  special  bail  in  any  action, 
shall  afterwards  be  legally  arrested  and  delivered  over  to 
the  executive  authority  of  the  United  States,  or  of  any  state 
or  territory  thereof,  upon  a  charge  of  having  committed  a 
crime  out  of  the  jurisdiction  of  the  state  of  Illinois,  and 
shall  be  thereupon  carried  beyond  the  limits  thereof,  such 
bail  shall  be  discharged  from  all  liability  incurred  as  bail, 
if  the  defendant  has  not  returned  to  the  state,  discharged 
from  such  arrest,  before  he  (the  surety)  shall  be  liable  to 
be  charged  as  bail  for  such  defendant. 

Banhriiptcy  or  insolvency  of  principal. — The  twenty- 
fourth  section  provides,  that  when  any  defendant  in  any 
civil  action  shall  have  been  discharged  as  an  insolvent 
debtor,  agreeably  to  the  laws  of  the  state  of  Illinois  respect- 
ing insolvent  debtors,  or  under  any  bankrupt  law  of  the 
United  States,  and  a  certificate  from  the  authority  lawfully 
granting  the  same  shall  be  produced  to  the  court,  the  bail 
of  such  defendant  shall,  in  all  cases,  be  entitled  to  have  an 
exoneretur  entered  upon  the  records  of*  the  court,  which 
shall  thereupon  operate  as  a  discharge  from  his  bond  in  the 
same  manner  as  if  he  had  surrendered  his  principal  in 
court,  or  to  the  sheriff,  as  directed  in  the  other  sections  of 
the  act :  Provided,  that  judgment  shall  not  have  been  re- 
covered against  him  as  the  bail  of  such  defendant. 


COAOIENCEMENT  OF  AN  ACTION.  51 

Bail  in  civil  cases — Capias  ad  respondendum. 

Sci.  fa.  against  bail  in  civil  cases  not  allozvcd. — The 
twenty-fifth  section  provides,  that  proceedings  by  scire 
facias  against  bail,  in  civil  cases,  shall  not  be  allowed  in 
any  court  of  record  in  this  state. 

No.  I.  Affidavit  for  capias  ad  respondendum,  charging 
fraud,  in  action  ex  contractu. 

State  of  Illinois,    > 

County  of ,  \  set.  A.  B.,  of ,  who  is  about 

to  commence  his  action  of  [assumpsit,  or  as  the  case  may 

be),  in  the Court  of  the  said  county,  against  C.   D., 

of ,  makes  oath  and  says,  that  the  said  C.  D.  is  justly 

indebted  to  this  affiant  in  the  sum  of dollars,  for  {here 

set  forth  the  cause  of  action  f>articnlarly)  *.  And  this 
affiant  further  says,  that  the  saidC.  D.  {here  set  forth  facts 
shozving  that  the  defendant  fraudulently  contracted  the 
debt,  or  incurred  the  obligation,  respecting  which  the  suit 
is  about  to  be  brought.)  And  this  affiant  further  says,  that 
he  verily  believes  the  benefit  of  whatever  judgment  he  may 
obtain  in  this  behalf  will  be  in  danger  oi  being  lost,  unless 
the  said  C.  D.  be  held  to  bail. 

A.  B. 

Subscribed  and  sworn,  etc. 


N'o.  2.  Affidavit  for  capias,  charging  the  defendant  with 
conceating,  assigning,  removi)ig,  or  disposing  of  his 
property,  with  intent  to  defraiid  the  plaintiff. 

(  Commence  as  in  Ko.  i,  inserting  these  words  at  the  *  ;) 
And  this  affiant  further  says,  that  the  said  C.  D.  {here  set 
forth  facts  showing  that  the  defendant  has  concealed,  as- 
signed, removed,  or  disposed  of  his  property,  as  the  case 
may  be,')  with  the  intent  to  defraud  this  affiant.  And  this 
affiant  further  says,  that  he  verily  believes  the  benefit  of 
whatever  judgment  he  may  obtain  in  this  behalf  w'ill  be  in 
danger  of  being  lost,  unless  the  said  C.  D.  be  held  to  bail. 

A.  B. 

Subscribed,  etc. 


52  COMMENCEMENT  OF  AN  ACTION. 

Bail  in  civil  cases — Capias  ad  respondendum. 

No.  3.  Affidavit  for  capias,  in  action  sounding  merely  in 
damages,   etc. 

State  of  Illinois,    \ 

County  of ,  5  ^^t.    A.  B.,  of ,  who  is  about 

to  commence  his  action  of  {trespass,  or  as  the  case  may 

be),  in  the Court  of  the  said  county,  against  C.  D.,  of 

,  makes  oath  and  says,  that  {here  set  forth  the  nature 

and  cause  of  the  action,  with  the  substantial  facts  in  rela- 
tion thereto).  And  this  affiant  further  says,  that  the  amount 
of  his  damages  can  not  be  definitely  stated,  but  he  believes 
he  has  sustained  damages  in  this  behalf  to  the  amount  of 
dollars.  And  this  affiant  verily  believes  that  the  ben- 
efit of  whatever  judgment  he  may  obtain  in  his  said  suit- 
will  be  in  danger  of  being  lost,  unless  the  said  C.  D.  be 
held  to  bail. 

A.  B. 

Subscribed,  etc. 

In  setting  forth  the  facts  in  the  affidavit,  it  is  advisable  to 
state  them  substantially  as  they  are  required  to  be  set  forth 
in  a  declaration.  The  above  forms,  Nos.  i  and  2,  maybe 
varied  to  suit  any  action  arising  ex  contracttt,  and  form 
No.  3  can  be  adapted  to  all  actions  ex  delicto. 

Before  the  passage  of  the  act  in  force  July  i,  1872,  the 
statute  of  Illinois  did  not  go  far  enough  to  meet  the  require- 
ments of  the  constitution.  («) 

It  will  be  seen  that  the  affidavit  fo;-  a  cafias  must  be  pre- 
sented to  a  judge  of  a  court  of  record,  or  if  there  is  no  such 
judge  in  the  county  at  the  time,  then  to  a  master  in  chan- 
cery ;  and  if  such  judge  or  master  shall  be  satisfied  that 
sufficient  cause  is  shown  to  require  bail,  he  shall  indorse  an 
order,  under  his  hand,  on  the  affidavit,  directing  the  clerk 
of  the  court  in  which  suit  is  about  to  be  brought  to  issue  a 
capias  ad  respondendum,  directed  to  the  proper  officer  to 
execute,  for  the  arrest  of  the  defendant  in  such  proposed 
action ;  and  the  judge  or  master  shall  in  such  order  fix  the 
amount  of  the  bail.     The  judge  or  master  ordering  the  is- 

(a)  16  111.  347;  20  111.  291 ;  24  111.  553;  45  111-  473. 


COMMENCEMENT  OF  AN  ACTION.  53 

Bail  in  civil  cases — Capias  ad  respondendum. 

suing  of  such  capias  will  require  bond  of  the  plaintiff  in  a 
penal  sum  of  double  the  amount  sued  for,  with  security  to 
be  approved  by  the  clerk  issuing  the  writ. 

yttdge's  order  for  a  capias  ad  respondendum,  to  be  indorsed 
on  the  affidavit. 

Let  a   capias  ad  respondendum   issue,  directed  to   the 

sheriff  of  the  county  of ,  for  the  arrest  of  C.  D.,  within 

named,  of  whom  the  sheriff  will  take  bail  in  the  sum  of 

dollars.     The  within-named  A.  B.  will  give  bond  in 

the  sum  of {double  the  amount  sued for^  dollars,  con- 
ditioned according  to  law. 

{Date.) 

E.  F.,  Judge. 

To  G.  H.,  Clerk  of  the Court  of  the  county  of . 

The  order  to  be  made  by  a  master  in  chancery  may  be 
the  same  as  the  above,  except  that  it  should  commence  as 
follows  : 

It  appearing  to  the  undersigned  that  there  is  no  judge  of 
a  court  of  record  in  the  county  :  Let,  etc.,  etc. 

O.  R.,  Master  in  Chancery. 

Bond  to  be  given  by  the  plaintiff  before  the  issuing  of  the 

■writ. 

Know  all  men  by  these  presents,  that  we,  A.  B.,  E.  F. 

and  L.  M.,  of ,  are  held  and  firmly  bound  unto  C.  D., 

of ,  in  the  penal  sum  of dollars,  for  the  payment 

of  which,  well  and  truly  to  be  made,  we  bind  ourselves, 
our  heirs,  executors  and  administrators,  jointly  and  sev- 
erally, by  these  presents,  sealed  with  our  seals,  and  dated 
this day  of ,  18 — . 

The  condition  of  this  obligation  is  such,  that  whereas  the 

above-bounden  A.  B.  is  about  to  sue  out  of  the Court 

of  ihe  county  of  ,  in  the  state  of  Illinois,  a  writ  of 

capias  ad  respondendum.,  in  a  plea  of ,  against  the 

said  C.  D.,  returnable  to  the  next  term  of  the  said  court,  to 

be  held  at ,  on  the day  of next :  Now  if  the 

said  A.  B.  shall  prosecute  the  said  capias  with  effect,  and 
without  delay,  and  pay  to  the  said   C.   D.    all   costs   and 


54         COMMENCEMENT  OF  AN  ACTION. 


Bail  in  civil  cases — Capias  ad  respondeiidum. 

damages  that  may  be  sustained  b}^  the  wrongful  suing  out 
of  such  cap'ias,  then  this  obligation  shall  be  void ;  other- 
wise shall  remain  in  full  force. 

A.  B.  [l.  s.] 
E.  F.  [l.  s.] 
L.  M.    [l.  s.] 

Taken  and  approved  by  me,  this day  of ,  i8—  . 

R.  S.,  Clerk. 

Bond  to  be  taken  by  the  shc7-ifffrom  the  dcfcndmit. 

Know   all   men  by  these  presents,  that  we,  C.   D.   and 

E.  F.,  of  ,  are  held  and  firml}-  bound  unto  T.  W., 

sheriff  of  the  county  of ,  in  the  state  of  Illinois,  in  the 

penal  sum  of  (^double  the  amoitnt  fo7'  ivhich  bail  is  re- 
quired) dollars,  for  the  payment  of  which,  well  and  truly  to 
be  made,  we  bind  ourselves,  our  heirs,  executors  and  admin- 
istrators, jointly  and  severally,  by  these  presents,  sealed 
with  our  seals,  and  dated  this day  of ,  i8 — . 

The   condition  of  this  obligation  is   such,  that  whereas 

one  A.  B.,  plaintifl',  has  lately  sued  out  of  the Court 

of  the  county  of a  certain  writ  of  capias  ad  respon- 

dcndum/m  a  certain  plea  of ,  against  the  aljove-bounden 

C.  D.,  defendant,  returnable  to  the  next  term  of  the  said 

court,  to  be  holden  at ,  on  the day  of next : 

Now  if  the  said  C.  D.  shall  be  and  appear  at  the  said  court, 

to  be  holden  at ,  on  the day  of next,  and,  in 

case  the  said  E.  F.  shall  not  be  received  as  bail  in  the  said 
action,  shall  put  in  good  and  sufficient  bail,  which  shall  be 
received  by  the  said  plaintiff,  or  shall  be  adjudged  sufficient 
by  the  court,  or,  the  said  E.  F.  being  accepted  as  bail,  shall 
pay  and  satisfy  the  costs  and  condemnation-money  which 
may  be  rendered  against  the  said  C.  D.  in  the  plea  afore- 
said, or  surrender  the  body  of  the  said  C.  D.  in  execution 
in  case  the  said  C.  D.  shall  not  pay  and  satisfy  the  said 
costs  and  condemnation-money,  or  surrender  himself  in 
execution  when  by  law  such  surrender  is  required,  then 
this  obligation  shall  be  void  ;  otherwise  shall  remain  in  full 
force.  C.  D.  [l.  s.] 

E.  F.  [l.  s.] 

Discharge  of  bail  in  the  discretion  of  the  court. — A  mo- 
tion to  discharge  bail,  and  let  the  capias  stand  as  a  sum- 


COMMENCEMENT  OF  AN  ACTION.  55 

Filing  affidavit  of  demand,   with  narr. 

inons,  is  addressed  to  the  sound  discretion  of  the  court,  and 
its  decision  can  not  be  assigned  for  error,  (^a) 

Surrender'  of  principal  after  irtiirn-day  docs  not  exon- 
erate the  bail. — A  surrender  of  the  principal  by  his  surety 
in  a  bail-bond,  on  and  after  the  return-day  of  the  process  in 
the  suit  against  the   surety,   does   not  exonerate  the  bail.  {b\ 

Splits  on  bail-bonds,  hoiv  brought. — The  act  of  1872  re- 
quires bail-bonds  to  be  taken  to  the  sheriff,  and  suits  on 
them  should  be  brought  in  his  name.  The  act  gives  no 
power  to  assign  them  to  the  plaintiff  in  the  action,  {c) 

AFFIDAVIT    OF     PLAIXTIFP's     CLAIM     ON     CONTRACTS     FOR    PAY- 
MENT  OF    MONEY. 

Section  36  of  the  Practice  Act  provides,  that  "  If  the  plaint- 
iff in  any  suit  upon  a  contract,  expressed  or  implied,  for  the 
payment  of  money,  shall  file  with  his  declaration  an  affidavit 
showing  the  nature  of  his  demand,  and  the  amount  due  him 
from  the  defendant,  after  allowing  to  the  defendant  all  his 
just  credits,  deductions  and  set-offs,  if  any,  he  shall  be  en- 
titled to  judgment  as  in  case  of  default  unless  the  defendant 
or  his  agent  or  attorney,  if  the  defendant  is  a  resident  of  the 
county  in  which  the  suit  is  brought,  shall  file  with  his  plea 
an  affidavit  stating  that  he  verily  believes  that  he  has  a  good 
defense  to  said  suit,  upon  the  merits,  to  the  whole  or  a  portion 
of  the  plaintiff's  demand,  and  if  a  portion,  specifying  the 
amount  (according  to  the  best  of  his  judgment  and  belief), 
upon  good  cause  shown,  the  time  for  filing  such  affidavit  may 
be  extended  for  such  reasonable  time  as  the  court  shall  order; 
no  affidavit  of  merits  need  be  filed  with  a  demurrer  or  motion  : 
Provided,  that  this  section  shall  not  apply  to  any  case  where 
an  executor  or  administrator  shall  defend  in  behalf  of  an 
estate  :     And,  provided,  f?trther,  that  if  the  plaintiff,  his  agent. 

(ff)    I  Scam.  556;  2  Gilm.  259;  5  Gilm.  169;  13  III.  551;  14  111.  364. 
(6)  3  Gilm.  64. 
(f)  Breese,  82. 


56  COMMENCEAIENT  OF  AN  ACTION. 

Affidavit    of   demand,   with  narr. 

or  attorney,  shall  file  an  affidavit  stating  that  affiant  is  taken 
by  surprise  by  such  plea  and  affidavit  of  merit,  and  that  he 
believes  that  plaintiff  has  testimony  to  support  his  claim 
against  the  defendant,  which  he  can  not  produce  at  that  term 
of  court,  but  expects  to  produce  by  next  term,  the  court 
shall  continue  such  cause  until  the  next  term."  (d) 

The  affidavit  of  the  plaintiff's  claim  may  be  made  by  any 
one  cognizant  of  the  facts,   (r) 

An  affidavit  of  plaintiff's  claim  on  an  account  is  to  be  taken 
as  prima  facie  evidence  of  the  amount  due,  unless  the  defend- 
ant files  an  affidavit  of  merits  with  his  pleas.   (/) 

An  affidavit  of  claim  or  merits  may  be  filed  with  a  distress 
warrant,  {(j)  or  a  declaration  on  an  appeal  bond.   {Ji) 

Form  of  affidavit  to  be  filed  ivith  declaration. 

( Venue  and  title  of  cause  as  on  page  /f.i,  ante.) 

A.  B.  of,  etc.,  makes  oath  and  says  that  he  is,  etc.  {Here 
state  zi>hethet  he  is  plaintiffs  agent,  etc.) ;  that  the  demand  of 
the  plaintiff  in  the  above  entitled  cause,  is  for.  etc.  [State 
the  nature  of  the  demamf);  and  tliat  there  is  due  to  the  plaint- 
iff from  the  defendant,  after  allowing  to   him  all  just  credits, 

deductions  and  set-offs,  the  sum  of dollars. 

A.  B. 

Subscribed  and  sworn  to,  etc. 

The  court,  in  its  discretion  may  allow  affidavit  of  plaint- 
iff's claim  to  be  filed  after  plea  is  filed;  and  may  then  strike 
plea  from  files,  unless  affidavit  of  merits  is  filed.  \i)  And 
affidavit  of  claim  may  be  amended.   (/") 

The  only  effect  of  omission  on  part  of  plaintiff  to  file  affi- 
davit with  declaration,  is  that  the  defendant  may  plead  with- 
out verifying  his  plea.  [IS) 

{d)  2  Starr  &  Curtis'  An    Stat.  1801. 

\e)  80  111.  435;  Id.  409;  84  111.  43;  71  111.  44.  226;  83  111.  597;  82  111.  49.>; 
76  111.  507. 

(/)  2  Starr  &  Curtis'  An.  Stat    1S04;  Kev.  S'.at.   (1877)  739;  17  Bradw.  260. 

{g)  87  111.  219. 

\h)  86  111.  57;  89  111.  3S9;  90  111.  80. 

(j)   100  111.  522. 

(/)  8SIII.34. 

{k)  71  111.  303- 


ASSUMPSIT.  57 


Nature  of  the  action,  etc. 


CHAPTER  III. 

ASSUMPSIT. 

Nature  <?/"  the  action — Assumpsit  in  the  matter  of  contracts, 
is  an  undertaking,  either  expressed  or  impHed,  to  perform  a 
parol  agreement. 

Express  assumpsit  is  an  undertaking  made  orally,  by  writ- 
ing not  under  seal,  or  by  matter  of  record,  to  perform  an  act 
or  to  pay  a  sum  of  money  to  another. 

Implied  assumpsit  is  an  undertaking  presumed  in  law  to 
have  been  made  by  a  party,  from  his  conduct,  although  he 
has  not  made  an  express  promise. 

The  law  presumes  such  an  undertaking  or  promise  to  have 
been  made,  on  the  ground  that  every  person  is  supposed  to 
have  undertaken  to  do  what  is,  in  point  of  law,  just  and  right. 
Such  an  undertaking  is  never  implied  where  the  party  has 
made  an  express  promise;  nor  ordinarily  against  the  express 
declaration  of  the  party  to  be  charged,  {a)  Xor  will  it  be 
implied  unless  there  be  a  request  or  assent  by  the  defendant 
shown,  ij))  though  such  request  or  assent  may  be  inferred 
from  the  nature  of  the  transaction,  {c)  or  from  the  sjlent  ac- 
quiescence of  the  defendant,  id)  or  even  contrary  to  fact,  on 
the  ground  of  legal  obligation.   {/) 

An    action    of  assumpsit,    so  called,    is    an  action  on   the 

(a)  I  Maine,  125;  13  Pick.  165;  i  Bouv.  L.  D.  19S;  2  Greenl.  on  Ev. 
Sec.  103. 

(/')  20  N.  H.  490;  1  Greenl.  Ev.  Sec.  107. 

(c)   1 5  Conn.  52  ;  tS  Vt   401. 

(</)  22  Am.  Jur.  2-1 1  ;  14    ohns.  378;   2  Blatchf.  343;  90  III.  363. 

(e)  I  H  Blackst.  90;  14  Mass.  227;  10  Pick.  136;  4  Maine,  25S  ;  13  Johns^ 
480;  2  McLean,  237,  364;  I  Cliitty  PI.  98,  99;  72  Peiiii.  St.  151;  17  N,  J. 
(Law)  385. 


58  ASSUMPSIT. 


When  the  action  lies,  etc. 


case,  and  is  properly  entitled  an  action  of  trespass  on  the 
case.   (/)  It  is  an  equitable  action,  (g-) 

It  differs  from  di'^f,  since  the  amount  claimed  need  not  be 
liquidated,  and  fro:n  covenant,  since  it  does  not  require  a 
contract  under  seal  to  support  it.  {gg) 

Special  assumpsit  is  an  action  of  assumpsit  brought  upon 
an  express  contract  or  promise  ;  and  general  assumpsit  is  an 
action  of  assumpsit  brought  upon  the  promise  or  contract  im- 
plied by  law  in  certain  cases. 

\\\  order  to  support  assumpsit  there  must  be  a  promise  or 
undertaking  on  the  part  of  the  defendant,  express  or  implied, 
for  a  promise  or  contract  is  the  very  gist  of  the  action.  (Ji) 

An  express  promise  excludes  an  implied  one.  (/) 

A  promise  is  a  sufficient  consideration  for  a  promise  upon 
which  to  found  an  action.   (/) 

Where  the  action  lies. — The  action  of  assumpsit  lies  where 
a  party  claims  damages  for  a  breach  of  a  simple  contract,  a 
contract  not  under  seal ;  and  such  promise  may  be  implied 
as  well  as  expressed.  The  law  always  implies  a  promise  to 
do  that  which  a  party  is  liable  to  perform.  {Ic) 

It  lies  whenever  the  defendant  has  obtained  money  of  the 
plaintiff,  which  in  equity  and  good  conscience  he  has  no  right 
to  retain.    (/) 

It  lies  to  recover  money  lent  by  the  plaintiff  to  the  defend- 
ant, or  paid  by  the  plaintiff  on  account  of  the  defendant  at 
his  request ;  or  for  money  had  and  received  by  the  defend- 
ant to  the  plaintiff's  use;  against  an  officer  for  fees  illegally 

(/)   32  111.  509;  Comyu's  Dig.;  I  Chitty  PI.  Ill,  112. 

U)   87  111.  165. 

(gg)  See  "debt"  and  "  covenmt,"  pos/;  4  Coke,  92  ;  4  Buir,  lOoS  ;  14  Pick. 
428;  2  Mete.  181  ;  37  Ccinn.  375. 

[k)  12  Ki"ch.  (S.  C.)  279;  2  Wash.  (Va.)  187  ;  2  Bing.  361 ;  10  Wend.  487. 
69  111.  440. 

{i)  69  111.  354. 

(y)  29  III.  145;  12  Bradw.  lOI. 

{k)  2  McLean,  237.  364. 

(/)  20  111.  650;  32  III.  532;  15  Cal.  344;  41  N.  II.  1S5  ;  45  111.  12S,  440; 
54  111.  383  ;  5  W.  Va.  193;  2  Ycitei  (Penn.),  26i. 


ASSUMPSIT.  59 


Where  the  action  lies,   etc. 


taken;  (;;/)  or  for  money  unlawfully  demanded;  {n)  against 
a  municipality  for  taxes  paid  under  an  illegal  assessment  or 
sale;  (o)  to  recover  an  illegal  tax  paid  under  protest ;  (/) 
money  paid  by  mistake  ;  {(j)  or  under  a  misapprehension  pf 
facts,  or  where  there  has  been  a  total  failure  of  consideration  ;  (r) 
and  money  obtained  through  fraud  and  false  representa- 
tion ;  (s)  against  a  common  carrier  for  failing  to  deliver  goods 
which  he  was  employed  to  convey  for  the  plaintiff.    (/) 

It  lies  on  promises  to  pay  or  re-pay  money,  or  to  do  or  forbea. 
some  other  act;  as,  for  goods  sold  and  delivered,  for  work  and 
labor,  use  and  occupation,  for  money  lent  or  money  paid, 
for  money  had  and  received,  and  on  an  account  stated.  It 
also  lies  for  a  breach  of  warranty,  express  or  implied,  in  the 
sale  or  exchange  of  chattels,  or  the  breach  of  a  contract  of 
bailment,  or  to  recover  for  the  labor  of  servants,  or  to  re- 
cover the  consideration  money  for  land  sold,  on  a  promise  to 
pay  a  debt  barred  by  the  Statute  of  Limitations,  for  unpaid 
installments  of  a  subscription  to  the  stock  of  an  incorpo- 
rated company.   (//) 

Assumpsit  lies  against  a  husband  or  father  for  necessary 
supplies  furnished  to  his  wife  or  child,  whom  he  is  bound  to 
support,  and  has  refused  or  neglected  to  supply,  notwith- 
standing his  protestations  against  his  liability,  (o)  Against 
an  attorney  lor  negligence  in  transacting  the  business  of 
his  profession,  {w) 

It  lies  for  the  value  of  goods  which  the  defendant,  by  fraud, 

(;«)   2  Serg.  &  Rawle,  48;  53  III.  428. 

(n)  9  Johns.  201. 

{0)  25  111.  411  ;  13  Wis.  611  ;  63  111.  66. 

(/)    16  Cal.  167;  39  N.  H.  143;  2  Mete.  (Ky.)  226;  4  R.  I.  47S;  12  I,a.  .\n. 

^21. 

{(/)  5  G  Im.  513;  89  111.  146;  92  111.  491;  loi  111.  138;  II  Bradw.  620. 

(r)  25  111.  411. 

(s)   17  Pick.  545  ;  24  N.  Y.  607. 

(/)  3  Scam.  193 ;  34  111.  389. 

(74)  I  Wail's  Ac.  &  D.  378,  and  cases  there  cited. 

(v)    13  Johns.  480;  3  Scam.  179;  82  111.  67. 

{w}   II  Johns.  479  ;  6  Maine,  471  ;  5  J.  J.  Marsh. (Ky.),  24S. 


6o  ASSUMPSIT. 


Consideration  of  contract. 


induced  the  plaintiff  to  sell  to  an  insolvent  person,  and  after- 
wards obtained  for  his  own  benefit ;  [x)  upon  an  express 
promise  to  pay  a  debt  upon  a  specialty,  upon  a  new  consid- 
e^-ation,  as  for  forbearance  ;  (j)  and  for  a  penalty  forfeited 
upon  a  by-law.  (.s) 

Since  the  Act  of  1872,  assumpsit  may  be  brought  upon  an 
insurance  policy  under  seal,  {a)  Money  lost  at  gaming,  {d) 
or  betting  on  elections,  horse-racing  and  the  like,  (c)  may 
be  recovered  in  this  action. 

Where  a  party  performs  labor  under  a  special  contract, 
and  has  been  prevented  by  the  act  or  default  of  the  opposite 
party  from  completing  it,  he  may  recover  for  such  labor  in  an 
action  of  assumpsit,   {d) 

If  one  person  converts  the  property  of  another  into  money 
or  money's  worth,  the  owner  may  waive  the  tort,  and  recover 
for  money  had  and  received  for  his  use.   (r) 

Where  a  judgment  has  been  reversed  upon  an  appeal  or 
writ  of  error,  assumpsit  maybe  maintained  to  recover  money 
paid  under  it,  or  collected  on  execution.  (/) 

Consideration  of  contract. — Every  promise,  for  the  non-per- 
formance of  which  an  action  of  assumpsit  may  be  maintained, 
must,  however,  be  founded  upon  a  sufficient  consideration. 
Nudum  pactum,  or  an  agreement  to  do  or  pay  anything  on 

(x)   26  Conn.  487  ;   5  Moore,  98. 

{y)  38  N.  H.  257. 

(3)   2  Lev.  252;  34  Penn.  358. 

{a)  65  111.  415  ,  81  III.  88  ,  80  III.  320. 

{b)  I  Starr  &  Curtis'  An.  Stat.  792  ;  23  III.  493  ;  2  Bradw.  30,  465  ;  26  111. 
56;  51  111.  473;  90  111.  420. 

(.)   lb.  5  94  111.  154;   51  111.  184. 

((/)  I  Scam.  410 ;  4  Gilm.  319;  5  Gilm.  298;  19  Cal.  291  ;  31  Vt.  162;  22 
Tex.  550;  70  111.  134. 

(e)  35  111.  222,  455  ;  45  111.  128;  46  111.  112  ;  47  111.  344;  51  111.  4S2,  520; 
52  111.  286;  10  Iowa,  360  ;  35  111.  455;  14  ]]raclw.  554. 

(/)  18  Cal.  275;  13  111.  494;  73  111.  415;  84  111.  355;  44111-381;  "in. 

^24;  70  111.  670;  109  III.  540;  41  Mo.  420;  Herman  on  Execuiions,  608;  Free- 
man on  Ex.,  Sec.  347;  Freeman  on  Judgments,  Sections  482,  483. 


ASSUMPSIT.  6 1 


Privity  of  contract — Commencement  of  .the  action. 

one  side,  without  any  compensation  on  the  other,  is  wholly 
void  in  law.  (^)  If  founded  on  an  illegal  consideration  it  is 
also  void,  {/i) 

But  any  act  of  the  plaintiff  from  which  the  defendant  de- 
rives a  benefit  or  advantage,  or  any  labor,  detriment  or  in- 
convenience sustained  by  the  plaintiff,  however  small  the 
benefit  or  inconvenience  maybe,  is  a  sufficient  consideration  if 
such  act  is  performed  or  such  inconvenience  suffered  by  the 
plaintiff  with  the  consent,  either  express  or  implied  of  the 
defendant.  (/) 

Privity  of  contract. — To  maintain  the  action,  there  must  be 
a  privity  between  the  parties,  but  it  may  be  a  privity  in  fact 
or  in  law.  (7)  If  the  plaintiff  is  a  stranger  to  the  consider- 
ation he  can  not  maintain  assumpsit,  {k)  But  a  party  may 
maintain  an  action  on  a  promise  made  to  a  third  party  for  his 
benefit.   (/) 

COMMENCEMENT  OF  AN  ACTION  OF  ASSUMPSIT. 

Form  of  prcecipe  for  siunnions. 
In  the Court  of  the  County  of- ,  in  the  State 


Assumpsit — Damages  ^- 


The  clerk  of  the  said  'court  will   issue   a   summons   in  the 
above  entitled  cause,  directed  to  the  sheriff  of  the  county  of 

,    a:nd   returnable    at    the    next term,  A.    D.    18 — . 

Dated  this day  of ,  A.  D.  18—. 

E.  F.,  Attorney  for  plaintiff. 

To Esq. 

Clerk  of  said  court. 

Kn)  32  111.  534;  43  I'l.  207;  52  III.  281;  74  111.  134;  84  111.  251  ;  gliradw 
347  ;  107  111.  404;  7  Mich.  325;  28  Ga.  242. 

(A)  71  111.  579;  95  III.  99  ;  78  111.  481  ;  83  111.  418;  104  111.  257. 

(?)  84  Eng.  Com.  Law  K.  711  ;  100  Id.  752;  10  Ad.  &  El.  309  ;  8  Tenn. 
R.  610. 

(7)2  McLean,  237,  364;  45  111.  128;  15  Bradw.  266,  276. 

(A;)  4  B.  &  Ad.  433  ;  13  Johns.  495  ;  3  Pi>.k.  83,  92. 

(/)  21  111.  194  ;  15  Cal.  344. 


62  ASSUMPSIT. 

Declaration  in  assump-it — Time  for  filing,  etc. 


DECLARATION  IN  ASSUMPSIT. 

Time,  for  filing — Copy  of  instrument  or  account  sued  on. — By 
section  17  of  the  Practice  Act,  it  is  provided  that, 

"  If  the  plaintiff  shall  not  file  his  declaration,  together  with 
a  copy  of  the  instrument  of  writing  or  account  on  which  the 
action  is  brought,  in  case  the  same  be  brought  on  a  written 
instrument  or  account,  ten  days  before  the  court  at  which  the 
summons  or  capias  is  made  returnable,  the  court,  on  motion 
of  the  defendant,  shall  continue  the  cause  at  the  cost  of  the 
[)Iaintiff,  unless  it  shall  appear  that  the  suit  was  commenced 
w  thin  ten  days  of  the  sitting  of  the  court,  in  which  case  the 
cause  shall  be  continued  without  costs,  unless  the  parties 
shall  agree  to  have  a  trial;  and  if  no  declaration  shall  be  filed 
ten  days  before  the  second  term  of  the  court,  the  defendant 
shall  be  entitled  to  a  judgnunt,  as  in  case  of  a  non-suit  :  Pro- 
vided, that  in  all  suits  by  capias^  where  the  defc:ndant  shall 
have  been  arrested,  and  in  replevin  and  attachment,  the 
plaintiff  may  be  required  to  file  his  declaration  at  the  first 
term,  and  the  defendant  may  have  a  trial  at  such  term,  unless 
sufficient  cause  for  a  continuance  is  shown."  {111) 

The  province  of  the  declaration  is  to  exhibit  on  the  record 
the  grounds  of  the  plaintiff's  cause  of  action,  as  well  for  the 
purpose  of  notifying  the  defendant  of  the  precise  character  of 
those  grounds,  as  of  regulating  the  plaiiitifif 's  proofs.  When 
it  performs  such  office  in  such  a  manner  as  to  leave  no 
doubt  in  the  mind  of  the  defendant,  either  as  to  the  nature  or 
origin  of  the  plaintiff's  claim,  it  ought  not,  on  principle,  to 
be  adjudged  insufficient;  {11)  but  it  must,  in  every  case,  con- 
tairj  a  full  and  explicit  statement  of  all  the  material  facts  upon 
which  a  recovery  is  sought,  {o) 

Each  count  in  a  declaration  must  truly  set  out  the  cause  of 
— — — « 

{m)  2  Starr  &  Curtis'  An.  Stat.  1783;    Kev.  Stat.  (1877)  736. 

\n)  I  Gilm.  333;  77  111.  6S  ;  39  111.  227;  43  III.  119;  86  111.   182. 

(0)  43  111.  119;  77  111.  68  ;  I  Scam.    193  ;   Breese,  26. 


ASSUMPSIT.  63 


Instrument  or  account  sued  on — .Continuance. 


action,  and  if  the  evidence  does  not  sustain  it,  the  action  as  to 
such  count  fails.  (/) 

Instrinncnt  or  account  sued  on. — If  the  document  sued  on  is 
set  out  in  Jiaec  verba  in  declaration,  an  additional  copy  is  not 
necessary  to  be  filed,  [q)  If  the  declaration  contains  a  special 
count  on  a  promissory  note  or  bill  of  e.xchange,  etc.,  and 
common  counts,  and  if  the  plaintiff  stipulates  that  he  will  rely 
alone  on  the  instrument  described,  no  accounts  need  be  filed 
under  common  counts,  (r)  In  such  case  the  defendant  will 
be  prevented  from  denying  the  execution  of  the  instrument, 
except  by  a  verified  plea;  {s)  or  from  setting  up  a  want  or 
failure  of  consideration  except  by  a  special  plea.  (/) 

Copy  of  document  sued  on  is  no  part  of  the  declaration  (//) 
and  a  variance  between  the  copy  and  the  original  itself, 
offered  in  evidence,  is  no  groimd  for  excluding  the  latter.    {z>) 

If  a  suit  is  on  a  judgment,  a  copy  of  the  record  must  be 
filed  with  the  declaration,  (zt-) 

Continuance. — If  the  declaration  and  instrument  or  account 
sued  on  is  not  filed  ten  days  before  tiie  term,  the  defendant 
may  appear  and  obtain  a  continuance  at  the  plaintiffs  costs  ; 
but  if  he  does  not,  the  case  will  be  continued,  and  the  costs 
will  abide  the  result  of  the  suit,  {x)  The  defendant  is  not 
compelled  to  appear  at  the  first  term  and  ask  for  a  continu- 
ance,  (j) 

(/)  2  Scam.  216;  21  III.  59S ;  41  111.  349;  ^6  111.  182;  10  Bradw.  279;  13 
Bradw.  362. 

(17)  2  Sc^im.  574  ;  I  Scam.  458. 

(r)    I  Scam.  473;  52  111.  2<i5  ;   91  111.   127;   24  111.  49. 

{s)  52  111.  205  ;   91  111.  127, 

(0  %2>  III.   232. 

(m)  57  111.  132  ;  15  111.  56;  but  see,  97  U.  S.  389. 

(t))  48  111.  138;  26  111.  68. 

{■w)  84  111.  278;  75  III.  62. 

(x)  24  111.  623. 

(y)  31  in- 153. 


64  ASSUMPSIT. 


Dismissal  where  no  declaration  filed. 


Where  common  counts  are  added  to  a  special  count,  a  fail- 
ure to  file  a  copy  of  the  account  sued  on  will  be  a  y^round  for 
a  continuance,  unless  the  plaintiff  stipulates  that  he  relies  only 
on  the  instrument  sued  on,  or  by  entering  a  nolle  prosequi  as 
to  the  common  counts,   {z) 

If  a  suit  is  brought  by  the  indorsee  of  a  negotiable  instru- 
ment, it  is  not  necessary  to  file  copy  of  the  indorsement  to 
prevent  a  continuance.  The  instrument  sued  on  being  the 
note  or  bill  of  exchange,  and  not  the  indorsement,  {a)  So, 
where  the  defendants  are  sued  as  guarantors  of  a  promissory 
note,  a  copy  of  the  note,  showing  the  names  of  the  defendants, 
as  indorsers,  is  a  sufficient  copy  of  the  instrument  sued  upon. 
The  plaintiff  is  authorized  to  fill  in  the  blank  over  their  names 
at  the  trial,   {li) 

Dismissal  at  second  term,  zvhere  no  declaration  is  filed. — If  no 
declaration  is  filed  ten  days  before  the  second  term  of  the 
court,  the  defendant  will  be  entitled  to  a  judgment,  as  in  case 
of  non-suit.  But  the  case  should  not  be  dismissed  at  the 
second  term  for  failure  to  file  a  copy  of  account,  until  the 
plaintiff  has  been  ruled  to  file  the  same,  and  has  failed  to 
comply,  {c) 

Waiver  of. — Either  party  to  a  suit,  has  the  right  to  have 
the  account  or  copy  of  the  instrument  upon  which  has  ad- 
versary relies,  filed  with  his  pleadings.  But  this  right  may  be 
waived;  and  the  party  entitled  to  its  enforcement  must  not  so 
act  as  to  lead  the  other  to  suppose  it  has  been  waived,  and 
until  it  would  subject  him  to  loss  or  inconvenience  to  have  it 
enforced,  {d)  But  a  suit  may  be  dismissed  for  the  reason  that 
no  declaration  has  been  filed  prior  to  ten  days  before  the  sec- 
ond term  of  the  court  after  its  commencement.  (^) 

(z)  22  111.  225;   5  Gilm.  303.  '  . 

{a)  26  111.  185  ;  28  111.  79. 

(^)4oIll.  356. 

(c)  2  Scam.  216;  I  Scam.  459,  473. 

(r/)  117  111.  191.     See  14  Bradw.  364;  17  Bradw.  219. 

(/)  12  Bradw.  37. 


ASSUMPSIT.  65 


Declaration — Common  counts. 


PRECEDENTS    OF    DECLARATIONS    IN    ASSUMPSIT. 

No.  I.     Indchitatiis  assumpsit.    G^--^/aX.l^  a^A^-— ^<»^ 

(This  count  may  be  used  in  an}'  of  the  following  cases,  by  inserting  in 
the  brackets  the  grounds  of  action.) 

In  the Court. 

Term,  18 — . 

State  of  Illinois, 


County  of ,  5  set.     A.   B.,  plaintiff,  by  E.  F., 

his  attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of 
trespass  on  the   case  on  promises  :  For  that  whereas  the 

defendant,  on  the  da\'  of ,  in  the  year  18 — ,  in 

tlie  county  aforesaid,  was  indebted  to  the  plaintiff  in  the 

sum  of dollars,  for  (*)  {^Iicrc  state  the  suhjcct-niattcr 

of  the  debt,  as  in  the  foUoxuing  counts,  and  proceed  as 
yollozvs :)  and  being  so  indebted,  the  defendant,  in  con- 
sideration thereof,  then  and  there  promised  the  plaintiff 
to  pay  him  the  said  sum  of  money,  on  request.  Yet  the 
defendant,  though  requested,  has  not  paid  the  same,  or  any 
part  thereof,  to  the  plaintiff,  but  refuses  so  to  do ;  to   the 

damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit^  etc. 

E.  F.,  Attorney  for  Plaintiff; 

I.      Goods  sold  and  dclivcj'ed. 

{Insert  in  the  brackets  inform  Ko.  i,  after  the  (*),  the 
foUozuing:')  "goods,  chattels  and  etTects  before  that  time 
sold  and  delivered  by  the  plaintiff  to  the  defendant,  at  his 
request." 

II.      Goods  bargained  and  sold. 

{Insert  in  form  No.  i  :)  "goods,  chattels  and  effects 
before  that  time  bargained  and  sold  by  the  plaintiff  lo  the 
defendant,  at  his  request." 

III.     Labor  and  services. 

{Insert  in  form  No.  i  :)  "tiie  labor  and  services  of  the 
plaintiff,  by  him  before  that  time  done  and  bestowed  in 
and  about  the  business  of  the  defendant,  at  his  request." 

5 


66  ASSUMPSIT. 


Common  counts. 


IV.      IFor/c  and  materials, 

{Insert  in  fonn  No.  i  :)  "work  before  that  time  clone, 
and  materials  for  the  same  furnished,  by  the  p^.aintift'  for 
the  defendant,  at  his  request." 

V.     Money  lent. 

{Insert  in  form  JVo.  i  :)  "money  before  that  time  lent 
by  the  plaintifl'  to  the  defendant,  at  his  request." 

VI.  Jlloney  expended. 

{Insert  in  form  No.  i  :)  "money  before  that  time  paid 
and  expended  by  the  plaintiff'  for  the  use  of  the  defendant, 
at  his  request." 

VII.  Money  received. 

{Insert  inform  No.  i  :)  "money  before  that  time  re- 
ceived by  the  defendant,  for  the  use  of  the  plaintiff." 

VIII.     Interest. 

(Insert  in  form  No.  i  :)  "interest  on  divers  sums  of 
money  before  that  time  forborne  by  the  plaintiff  to  the  de- 
fendant, at  his  request,  for  divers  spaces  of  time  before  then 
elapsed." 

IX.     Aecount  stated. 

{Insert  in  form  No.  i  :)  "  money, tbund  to  be  due  from 
the  defendant  to  the  plaintiff,  upon  an  account  then  and 
there  stated  between  them." 

X.  Board  and  Lodging. 

{Insert  in  form  No.  i :)  "the  use  and  occupation  of 
certain  rooms  and  furniture  of  the  plaintitf,  before  that  time 
used  and  enjoyed  by  the  defendant,  at  his  request ;  and  for 
meats,  drinks  and  attendance,  and  other  necessaries  and 
goods  by  the  plaintiff  before  that  time  found  and  provided 
for  tlie  defendant,  at  his  request." 

XI.  Hire  of  horses,  etc. 

{Insert  in  form  No.  i :)  "the  use  and  hire  of  horses, 
carriages  and  goods  by  the  plaintiff  before  that  time  let  to 


ASSUMPSIT.  67 


Common  counts. 


the  defendant,  at  his  request,  and  by  him  accordingly  had 
and  used." 

XII.     Stabling  and  keeping  horses,  etc. 

{Insert  in  form  No.  i  :)  **horsemeat,  stabHng,  care,  a»rt 
attendance  by  the  plaintiff  before  that  time  provided  and 
bestowed  in  and  about  the  feeding  and  keeping  of  divers 
horses,  mares,  geldings  and  cattle,  for  the  defendant,  at 
his  request." 

XIII.     Necessaries, 

{Insert  in  form  JVo.  i  :)  "meat,  drink,  washing,  lodg- 
ing, attendance,  and  other  necessaries  and  goods  before 
that  time  found  and  provided  by  the  plaintiff  for  the  defend- 
ant, at  his  request." 

XIV.  Physician'' s  bill. 

{Insert  in  form  No.  i  :)  "medical  attendance,  advice 
and  medicines  before  that  time  given  and  provided  by  the 
plaintiff  to  and  for  the  defendant,  at  his  request." 

XV.  Attornefs  bill. 

{Insert  in  form  No.  i  :)  "the  work,  care,  diligence, 
journeys  and  attendance  of  the  plaintiff,  by  him  before  that 
time  performed  and  bestowed,  as  the  attorney  and  solicitor 
of  and  for  the  defendant,  at  his  request,  and  for  fees  due  to 
the  plaintiff  in  respect  thereof,  arid  for  materials  and  neces- 
sary things  by  the  plaintiff  provided  in  and  about  the  said 
work  for  the  defendant,  at  his  request." 

XVI.      Warehouse  roo)n,  etc. 

{Insert  in  form.  A'^o.  1  :)  "work  done  by  the  plaintiff, 
and  warehouse  room  by  him  found  and  provided,  in  and 
about  the  stowing,  keeping  and  taking  care  of  certain  goods 
before  then  stowed,  kept  and  taken  care  of  by  the  plaintifT, 
in  certain  warehouses  and  premises  of  the  plaintiff,  for  the 
defendant,  at  his  request." 

N'o.  2.      Common  connts,  consolidated. 

{  Commence  as  in  No.  i ,  ante,  -page  65 .)    For  that  whereas 

the  defendant,  on  the day  of ,  in  the  year  18 — ,  in 

the  county  aforesaid,  was  indebted  to  the  plaintiff  in  tlie  sum 


68  ASSUMPSIT. 


Consolidated  common  counts. 


of dollars,  for  goods,  chattels    and  eflects  before  that 

time  sold  and  delivered  by  the  plaintiff  to  the  defendant,  at 
his  request ;  and  in  the  like  sum  for  goods,  chattels  and 
effects  before  that  time  bargained  and  sold  by  the  plaintiff 
to  the  defendant,  at  his  request ;  and  in  the  like  sum  for 
work  and  services  before  that  time  done  and  bestowed,  and 
materials  for  the  same  work  furnished,  by  the  plaintiff  for 
the  defendant,  at  his  request ;  and  in  the  like  sum  for  money 
before  that  time  lent  by  the  plaintiff  to  the  defendant,  at  his 
request ;  and  in  the  like  sum  for  money  before  that  time 
paid  and  expended  by  the  plaintiff  for  the  use  of  the  de- 
fendant, at  his  request ;  and  in  the  like  sum  for  money  be- 
fore that  time  received  by  the  defendant  for  the  use  of  the 
plaintiff;  and  in  the  like  sum  for  interest  on  divers  sums  of 
money  before  that  time  forborne  by  the  plaintiff  to  the  de- 
fendant, at  his  request,  for  divers  spaces  of  time  before  then 
elapsed ;  and  in  the  like  sum  for  money  found  to  be  due 
from  tlie  defendant  to  the  plaintiff,  on  an  account  then  and 
there  stated  between  them  :  and  being  so  indebted,  the  de- 
fendant, in  consideration  thereof,  then  and  there  promised 
the  plaintiff  to  pay  him,  on  request,  the  several  sums  of 
money  so  due  to  him  as  aforesaid.  (*)  Yet  the  defendant, 
though  requested,  has  not  paid  the  same,  or  either  of  them, 
or  any  part  thereof,  to  the  plaintiff,  but  refuses  so  to  do  ; 
to  the  damage  of  the  plaintiff  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 

The  joinder  in  one  count  of  all  the  common  counts  has 
been  in  general  practice  in  the  English  courts,  and  by  most 
of  those  in  the  American  states.  The  practice  is  not  only- 
sanctioned,  but  commended  by  the  ablest  jurists,  {f) 

Where  the  declaration  alleges  a  debt  for  work  done,  and 
a  debt  for  goods  sold,  etc.,  though  with  only  one  general 
promise  to  pay,  the  statement  of  each  debt  is  regarded  as  a 
separate  count ;  but  where  there  is  only  one  statement  of 
debt,  though  founded  on  several  considerations,  it  is  one 
count  only,  {q) 

(/)  5  Dutch.  (N.  J.)  367;  4  Johns.  2S4. 
Iq)  II  Meeson  &  Welsby,  S31. 


ASSUMPSIT.  69 


Common  count — Indebitatus,  etc. 


Several  causes  of  action  maybe  joined  in  one  count,  and 
it  will  not  be  necessaiy  to  prove  all  the  causes  alleged. 
Recover}'^  may  be  had  pro  tanto.  if) 

Under  an  indebitatus  count  the  plaintiff' may  recover  what 
may  be  due  to  him,  although  no  specific  price  or  sum  was 
agreed  upon  ;  and  therefore  it  has  been  observed  that  the 
qtiantimi  mcrtiit  and  quantum  valebant  counts  are  un- 
necessary, and  should  in  many  cases  be  omitted,  to  prevent 
unnecessary  prolixity  and  expense,  {s) 

A  count  for  goods  sold  and  delivered,  which  avers  that  a 
party  promised  to  pay  on  request,  the  declaration  con- 
cluding with  the  general  breach  of  non-payment,  is  good, 
without  averring  a  special  request,  [t) 

Where  there  is  a  subsisting  unexecuted  agreement.  /;.'- 
debitatJis  assinn-psit  will  not  lie.  {ii) 

Indebitatus  assumpsit  will  not  lie  where  the  agreement 
is  not  for  the  pavment  of  money,  but  for  the  doing  of  some 
other  thing  ;  the  count  in  such  case  must  be  special,  (z') 

It  will  lie  to  recover  the  stipulated  price  due  on  a  special 
contract,  where  the  contract  has  been  completely  executed, 
so  that  only  a  duty  to  pay  thejnoney  rerpains.^  (■ze/)  But  it 
will  not  lie  where  the  claim  is  upon  a  warranty  of  a  chat- 
tel, {x) 

The  purchase-money  of  land  sold  and  conveyed  may  be 
recovered  under  the  appropriate  common  count,  {y) 

A  promissory  note  may  be  given  in  evidence  under  the 

(r)  2  Saund.  122;  Cro.  Jac.  245;  Yelv.  175;  I  Brownl.  Ent.  74;  2  Black. 
910;  Bumb.  262;  4  J>;lins.  84  ;   13  John-.  284;  2  Freem.  111.  Dig.  1261. 

(j)    I  Chit.  PI.  301;  2  Saund.  122  a,  n.  2;   20  Biadvv.  369. 

(/)   13  111.  674.   • 

(m)  8  Mo.  118,  517;  7  Mo.  430;  13  Johns.  56;  lo  B.  Mon.  2S7  ;  6  Conn. 
100;  2  Shepley,  3S3;   Wright,  489,  577;  26  111.  452. 

[xi)  II  Wheat.  237  ;  2  B.own,  227;  4  Cowen,  564;  12  Wend.  477  ;  16  Vt. 
113;  6  Dana,  395  ;  4  Gilm.  92  ;  70  111.  19 ;  67  III.  469 ;   14  Bradw.  69. 

(ji<)  19  111.  169;  21  111.  108;  24  111.  263;  53  111.  369;  50  111.  138;  45  III. 
193;  38  111.  40.  533  ;  80  111.  101  ;  84  III.  130;  55  III.  62;  62  111.  1S8. 

(or)  54  111.  147  ;   70  111.  19. 

( J)  38  111-533- 


70  ASSUMPSIT. 


Money  had  and  received. 


money  counts  in  an  action  by  the  indorsee  against  the 
maker ;  (z)  and  in  an  action  against  the  indorser ;  («)  so 
may  a  check  on  a  bank  in  which  the  drawer  has  no  funds, 
in  an  action  against  the  drawer,  without  showing  present- 
ment, (d) 

A  coupon  is  proper  evidence  under  the  common  money 
counts,  (c)  Bills  of  exchange,  {d)  and  notes  payable  in 
specific  articles,  are  properly  admissible  under  the  money 
counts,  (c) 

An  action  of  assumpsit  for  work  done  can  not  be  main- 
tained without  proof  that  such  work  was  done  at  the  re- 
quest of  the  defendant,  and  tor  his  benefit,  (y*)  And  in 
some  cases,  although  the  original  agreement  has  not  been 
strictly  performed  by  the  plaintiff,  yet  if  the  defendant  avails 
himself  of,  and  derives  a  benefit  from,  the  work  done,  he 
will  be  liable  upon  a  common  count.  (  «") 

Money  had  and  received. — Under  this  count  the  plaintifl 
may  prove  the  receipt  of  bank-notes  by  the  defendant ;  (/^) 
or  promissory  notes  ;  (/')  or  credit  in  account,  in  the  books 
of  a  third  person  ;  (y  )  or  a  mortgage  assigned  to  the  de- 
fendant as  collateral  security,  and  under  which  he  has  ac- 
quired the  property  ;  {k)  and  where  mone}^  has  been  deliv- 
ered to  the  defendant  for  a  particular  -pur fos^c,  to  which  he 
has  refused  to  apply  it,  he  can  not  appl}"  it  to  any  other, 
but  it  may  be  recovered  by  the  depositor,  under  the  count  for 

(ir)   7  Ilalst.  141. 

(  a  )   II  Pick.  316;   12  Mass.  172;  16  Pick.  395;  9  Met.  27S,  417. 
(*)  15  Mass.  69;  3  Pick.  iS;   15  Mass.  433;  35  111.  396. 
(c)  24  111.  75;  45  111.  139. 
(<f)  16  111.  269;  24  111.  1S3. 
(e)  7  Wend.  311 ;  2  Johns.  235;  12  Johns.  90. 
(/)  1  Blackf.  247. 

\g)  4  Taunt.  748;  15  Wend.  586;  8  Pick.   17S;   19  Pick.  528,  529;   18 
Pick.  229,  231;  Ti  Wend.  477;  11  Vt.  510;  i  Scam.  410. 
{h)  13  East,  20,  130;  17  Mass.  560;  7  Cowen,  662. 
(/)  3  Mass.  405;  3  Shepl.  2S5;  7  Johns.  132;  9  Pick.  92. 
Kj )  3  Camp.  199. 
(Z)  SWend.  6.V. 


ASSUMPSIT.  71 


Money  had  and  received,  etc. 


money  had  and  received.  (/)  If  it  was  placed  in  his 
hands  to  be  paid  over  to  a  third  person,  which  he  agreed 
to  do,  such  person,  assenting  thereto,  may  sue  for  it,  as 
money  had  and  received  to  his  use  ;  (;;/)  but  if  the  defend- 
ant did  not  consent  so  to  appropriate  it,  it  is  otherwise, 
there  being  no  privit}^  between  them  ;  and  the  action  will . 
lie  only  by  him  who  placed  the  money  in  his  hands,  (n) 

The  count  for  money  had  and  received  may  also  be  sup>- 
ported  by  evidence  that  the  defendant  obtained  the  plaint- 
iff's money  by  fraud,  or  false  color  or  pretense,  (o) 

And  generally  speaking,  whenever  one  person  has  in  his 
hands  money  equitably  belonging  to  another,  that  other 
person  may  recover  it  in  assumpsit  under  the  count  for 
money  had  and  received ;  (^)  but  the  plaintiff  must  show 
a  just  as  well  as  a  legal  right  to  the  money,  {q) 

Assumpsit  for  money  had  and  received  lies  to  recover 
money  paid  on  an  execution  issued  on  a  judgment  (r)  sub- 
sequently reversed.   (5) 

Where  a  contract  is  rescinded,  assumpsit  for  money  had 
and  received  will  lie  to  recover  money  paid  thereon.    (^) 

Assumpsit  for  money  had  and  received  lies  to  recover 
money  paid  under  an  original  ignorance  or  a  subsequent 
forgetfulness  of  facts,   (u) 

The  reader  will  see  further,  upon  the  subject  of  the  com- 
mon counts,  I  Chitty's  PI.  341-360. 

(  /)  14  East,  590. 

(;«)  Com.  Dig.  205,  206. 

(  «  )   14  East,  5S2  ;   17  Mass.  575  ;  3  Price,  58. 

(0)1  Stephen's  Nisi  Prius,  335 ;  4  Mass.  4S8 ;  4  Conn.  35c. 

{/  )   17  Mass.  575;  21  Pick,  i ;   15  Conn.  52 ;  20  111.  650;  43  III.  24, 

(</  )  2  Burr.  1012;  Doug.  138;  2  Terra,  370;  6  Term,  631. 

(  r  )   15  Wend.  321 ;  18  Cal.  275. 

(5)   10  Wend.  354;  6  Cowen,  287;  24  Wend.  36;   11  Met.  248;   i  Term, 

387- 

(/)  9  New  Hamp.  29S;  5  Shepley,  296;  3  Brevard,  547. 

(u)  9  M.  &  W.  54;  7  Howard  (Miss.  ,  371 ;   i  Hill,  2S7 ;   10  Wend.  174. 


ASSUMPSIT. 


^uaiittim  meruit  and  quantum  valebant  counts. 


A^o.  3.     Qiiantum  meruit  count. 

(^Commence  as   in   JVo.    i,   ante,  ^ogc  65.)      For  that 

whereas  on  the day  of ,  in  the  year  18 — ,  in  the 

county  aforesaid,  in  consideration  that  the  plaintiff,  at  the 
request  of  the  defendant,  had  before  that  time  done  and  be- 
stowed certain  work  and  services  in  and  about  the  business 
of  the  defendant,  and  for  him,  (or  insci't  any  other  subject- 
viatter  of  debt  ^  as  in  the  forms  under  No.  i,  ante,  except 
goods  sold  and  delivered,  or  goods  bargained  and  sold, 
and  proceed  t/ms :)  the  defendant  promised  the  plaintiff  to 
pay  him,  on  request,  so  much  money  as  he  therefor  reason- 
ably deserved  to  have  ;  and  the  plaintiff  avers  that  he  then 
and  there  reasonably  deserved  to  have  therefor  the  sum 

of dollars,  whereof  the  defendant  tlien  and  there  had 

notice.  Yet  the  defendant,  though  requested,  has  not  paid 
to  the  plaintiff  the  said  sum  of  money,  or  any  part  thereof, 

but  refuses  so  to  do ;  to  the  damage  of  the  plaintill  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

JVo.  4.     Quantum  valebant  count. 

{First,  indebitatus  count,  as  ante,  JVo.  i,  -page  65.) 
And  whereas  also,  on  the  day  last  aforesaid,  in  the  county 
aforesaid,  in  consideration  that  the  plaintiff,  at  the  request 
of  the  defendant,  had  before  that  time  sold  and  delivered 
{or  "bargained  and  sold,"  as  the  case  may  bey)  to  the  de- 
fendant divers  other  goods,  chattels  and  effects,  the  de- 
fendant promised  the  plaintiff  to  pay  him,  on  request,  so 
much  money  as  the  last-mentioned  goods,  chattels  and 
effects,  at  the  time  of  the  sale  and  delivery  {or  "bargain 
and  sale")  thereof  as  aforesaid,  were  reasonably  worth; 
and  the  plaintiff  avers  that  the  same  were  then  and  there 

reasonably  worth  the  further  sum  of dollars,  whereof 

the  defendant,  on  the  day  last  aforesaid,  there  had  notice. 
Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  last-mentioned  sum  of  money,  or  any  part 
thereof,  but  refuses  so  to  do ;  to  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 

As  the  plaintiff  may  recover  on  the  indebitatus  count, 
though  no  contract  for  a  specific  price  be  proved,  the 
quantum   meruit  or   qtiantum  valebant  count  seems  un- 


ASSUMPSIT.  73 


Declaration  by  surviving  partner,  etc. 


necessary,  and  where   the  declaration  is  otherwise  long, 
should  be  omitted,  {v) 

The  quantum  valebant  count  is  not  in  practice  adopted, 
except  when  the  demand  is  for  goods  sold  and  delivered, 
or  bargained  and  sold,  and  the  quantum  meruit  count  seems 
in  all  cases  sufficient,    {zv) 


COMMOX   COUNTS RELATING  TO   THE   CHARACTER   IN 

WHICH  THE  PLAINTIFF  SUES,  OR  THE  DEFENDANT  IS 
SUED. 

JVo.  5.     By  surviving  fartncr ^  on  -promises  to  both  -part- 

ners. 

In  tlie Court. 

Term,  18—. 

State  of  Illinois, 


County  of ,  5   set.     A.  B.,  plaintiff,  by  G.  H., 

his  attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of 
trespass  on  the  case  on  promises  :  For  that  whereas  the  de- 
fendant, in  the  lifetime  of  one  E.  F.,  since  deceased,  to  wit, 

on  the day  of  ,  in  the  year  18 — ,  in  the  county 

aforesaid,  was  indebted  to  the  plaintiff  and  the  said  E.  F. 

in  the  sum  of dollars,  for  the  work  and  services  of  the 

plaintiff  and  the  said  E.  F.,  by  them  before  that  time  done 
and  bestowed  for  the  defendant,  at  his  request  {any  other 
demand,  as  "for  goods  sold,"  etc.,  is  to  be  described  in  the 
same  manner^  ;  and  being  so  indebted,  the  defendant,  in 
consideration  thereof,  then  and  there  promised,  etc.  {laying 
the  promise  to  both  the  partners.)  Yet  the  defendant, 
though  requested,  has  not  paid  the  said  sum  of  money,  or 
any  part  thereof,  to  the  plaintiff  and  the  said  E.  F.,  or  either 
of  them,  but  refuses  to  pay  the  same  ;  to  the  damage  of  the 

plaintiff  of  dollars,  and  therefore  he  brings  his  suit, 

etc. 

(w)  2  Chit.     PI.  38,  note  a;  2  Saund.  122,  note  2. 
(w)  2  Chit.     PI.  38,  note  b. 


74  ASSUMPSIT. 


Declaration  against  surviving  partner,  etc. 


If  deemed  expedient,  counts  may  be  added  on  promises 
to  the  survivor.  See  forms  of  declarations  by  executors  and 
administrators,  ^ost. 

Tlie  administrator  of  a  deceased  partner  should  not  join 
with  the  surviving  partner  in  a  suit  to  recover  a  debt  due  to 
the  partnership,  (a-) 

It  would  be  untechnical  in  a  declaration  merely  to  de- 
scribe a  deceased  partner  as  a  late  partner,  without  aver- 
ring his  death,  (jy)  But  the  omission  of  the  words,  "since 
deceased,"  in  a  declaration,  is  no  ground  for  demurrer,  {z) 

No.  6.     Against  snrviving ^artnci' ,  for  tvork  done. 

In  the Court. 

Term,  i8 — . 

State  of  Illinois,    ) 

County  of ,  )  set.     A.  B.,  plaintiff',  by  G.  H., 

his  attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of 
trespass  on  the  ca^e  on  promises  :  For  that  whereas  the 
defendant  and  one  E.  F.,  in  his  lifetime,  now  deceased,  on 
the day  of ,  in  the  year  i8 — ,  in  the  county  afore- 
said, were  indebted  to  the  plaintiff  for  work  and  services  by 
the  plaintiff  before  that  time  done  and  bestowed  for  the  de- 
fendant and  the  said  E.  F.,  at  their  request  [or  for  any 
other  matter.,  to  be  here  inserted  as  in  N^o.  i,  ante,  ^a^r 
65)  -,  and  being  so   indebted,  the  defendant   and  the  said 

E.  "F.,  in  consideration  thereof,  then  and  there,  in  the  life- 
time of  the  said  E.  F.,  promised  the  plaintiff  to  pay  him 
the  said  sum  of  money,  on  request.  Yet  though  requested, 
the  defendant  and  the  said  E.  F.  have  not,  nor  has  either 
of  them,  ever  paid  to  the  plaintiff  the  said  sum  ot  money, 
or  any  part  thereof,  but  they  in  the  lifetime  of  the  said  E. 

F.  wholly  refused,  and  the  defendant  has  ever  since  the 
death  of  the  said  E.  F.  retused,  and  still  refuses,  so  to  do  ; 
to  the  damage,  etc. 


(*)  44  IH-  32- 

(j)  I  Har.  &  Wol.  108. 
(z)  3  Dowl.  495. 


ASSUMPSIT.  75 


Declaration  by  husband  and  wife,  etc. 


Where  one  of  the  johit  makers  of  a  contract  dies,  his 
executor  or  administrator  is  discharged,  at  law,  and  an  ac- 
tion can  be  maintained  only  against  the  survivor,  (a)  The 
survivor  can  not  be  sued  jointly  with  the  executor  of  the 
deceased,  {d) 

No.  7.     Husband  and  wife  against  defendant,  fo?-  ivork^ 
etc.,  by  2ui/e  before  marriage. 

In  the Court. 

Term,  18 — . 

State  of  Illinois,    ) 

County  of ,  \  set.     A.   B.    and  C,    his  wife, 

plaintitfs,  b\'  G.  H.,  their  attorney,  complain  of  D.  E.,  de- 
fendant, of  a  plea  of  trespass  on  the  case  on  promises  :  For 
that  whereas  the  defendant,  while  the  said  C.  was  sole  and 

immarried,  to  wit,  on  the day  of  ,  in  the  year 

18 — ,  in  the  county  aforesaid,  was  indebted  to  the  said  C. 

in  the  sum  of dollars,  for  work  and  services  by  her 

before  that  time  done  and  bestowed  in  and  about  the  busi- 
ness ot  the  del'endant,  and  for  him,  at  his  request  (or  insert 
any  other  subject-matter  of  debt.,  as  in  the  forms  under 
Ko.  I,  ante)  :  and  being  so  indebted,  the  defendant,  in  con- 
sideration thereof,  then  and  there,  while  the  said  C.  was 
sole  and  unmarried  as  aforesaid,  promised  the  said  C  to 
pay  her  the  said  sum  of  money,  on  request.  Yet  the  de- 
fendant, though  requested,  has  not  paid  the  said  sum  of 
money,  or  any  part  thereof,  either  to  the  said  C.  while  she 
was  sole  and  unmarried  as  aforesaid,  or  to  the  plaintiffs,  or 
either  of  them,  since  their  intermarriage,  but  refuses  to  pay 

the  same  ;  to  the  damage  of  the  plaintitls  ot  dollars, 

and  therefore  they  bring  their  suit,  etc. 

Whenever  a  wife  joins  in  a  suit  with  her  husband,  her 
interest  must  appear,  (c) 

In  Illinois,  since  the  passage  of  the  act  of  February  21, 

(a)  3  Scam.  383;  i  Went.  14? 

{jb)  I  Chit.     PI.  50;  2  Lev.  22S;  31  111.  254. 

(c)  2  Bla.  1236. 


76  ASSUMPSIT. 


Against  husband  and  wife,  etc. 


1861,  entitled  "«//  act  to  protect  married  -women  in  their 
separate  property ^''  a  feme  covert  can  sue  alone  for  her 
separate  property,  or  for  the  enforcing  of  any  of  her  rights, 
without  joining  her  husband.  So  far  as  her  separate  prop- 
erty is  concerned,  she  is  unmarried,  and  she  may  institute 
suits  even  against  her  husband,  should  he,  contrary  to  her 
wishes,  and  in  contempt  of  her  rights,  unlawfully  inter- 
fere, (yd)  Such  is  the  law  also  in  Pennsylvaxiia,  and 
several  other  states,   (c) 

At  common  law,  for  choses  in  action  due  to  the  wife  be- 
fore marriage,  the  husband  and  wife  must  join,  {f)  It  is 
well  settled  that  the  husband  can  not  sue  alone,  upon  a 
contract  of  the  wife  when  sole,  and  before  marriage,  i^g) 
They  must  join  in  all  actions  upon  bonds,  and  other  per- 
sonal contracts,  made  with  the  wife  before  marriage, 
whether  the  breach  was  before  or  during  the  coverture.  {1i) 

No.  8.   Against  husband  and  wife,  for  work  done,  etc., 
for  -wife,  before  marriage. 

In  the Court. 

Term,  18—. 

State  of  Illinois, 


County  of ,  5   set.       A.    B.,    plaintiff,    by   G. 

H.,  his  attorney,  complains  of  C.  D.  and  E.,  his  wife, 
of  a  plea  of  trespass  on  the  case'  on  promises :  For  that 
whereas  the  said  E.,  while  she  was  sole  and  unmarried, 

to  wit,   on  the  day  of  ,   in  the  year   18 — ,   in 

the  county  aforesaid,  was  indebted  to  the  plaintiff  in  the 

sum    of dollars,   for   work  before  that   time    done, 

and  materials  for  the  same  furnished,  by  the  plaintiff 
for  the  said  E.,  at  her  request  {^or  insert  any  other  sub- 
ject-matter of  debt,  as  in  the  forms  under  JVo.  i,  ante)  ; 
and  being  so  indebted,  she  the  said  E.,  in  consideration 

{d)  Rev.  Stat.  (1877)  552;  32  III.  493;  52  III  260;  51  111,  206;  45  111.  72; 
77111.346;  75111-566. 

{e)  13  Penn.  480;  II  Penn.  275;  16  Penn.  134;  5  J.J.  Marsh.  230;  2  Texas, 
378;  9  Texas,  297  ;    13  Texas,  337  ;    12  Texas,  278. 

(/)   10  Pick.  463. 

(c)    15  Johns.  402,  403  ;  8  Johns.  150. 

{/i)   I  Chit.  PI.  29;   15  Johns.  479;   13  Wend.  271. 


ASSUMPSIT.  77 


By  executor,  etc.,  on  promise  to  testator. 


thereof,  then  and  there,  while  she  was  sole  and  unmarried 
as  aforesaid,  promised  the  plaintiff  to  pay  him  the  said  sum 
of  money,  on  request.  Yet  neither  has  the  said  E.  while 
she  was  sole  and  unmarried  as  aforesaid,  nor  have  the  de- 
fendants since  their  intermarriage,  nor  has  either  of  them, 
ever  paid  to  the  plaintiff  the  said  sum  of  money,  or  any 
part  thereof,  although  thereto  requested,  but  to  pay  the 
same  the  defendants  refuse ;  to  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 

In  general,  "2^.  feme  covert  can  not  be  sued  alone  at  com- 
mon law ;  and  when  a  feme  sole,  who  has  entered  into  a 
contract,  marries,  the  husband  and  wife  must  in  general  be 
jointly  sued.  (/)  But  if  difeme  sole  marries  pending  a  suit 
against  her,  the  marriage  need  not  be  noticed  in  the  subse- 
quent proceedings.  It  does  not  affect  the  form  of  the  pro- 
ceedings, but  the  suit  goes  on  as  if  no  marriage  had  taken 
place,  ij) 

A  wife  can  not  be  sued  at  law  on  a  note  executed  by  her- 
self and  husband  for  land  conve3ed  to  the  wife,  (k) 

yo.  9.    Sy  executor,  for  -work,  etc.,  on  promise  to  testator. 

In  the Court. 

Term,  18 — . 

State  OF  Illinois,     > 

County  of ,  5  set.      A.   B.,  plaintiff,   executor 

of  the  last  will  and  testament  of  E.  F.,  deceased,  com- 
plains of  C.  D.,  defendant,  of  a  plea  of  trespass  on  the 
case  on  promises  :  For  that  whereas  the  defendant,  in  the 

lifetime  of  the  said  E.  F.,  to  wit,  on  the day  of , 

in  the  year  18 — ,  in  the  county  aforesaid,  was  indebted  to 

the  said  E.  F.  in  the  sum  of dollars,  for  work  before 

that  time  done,  and  materials  for  the  same  furnislied,  by 
the  said  E.  F.  for  the  defendant,  at  his  request  {any  other 
debt,  as  for  goods  sold,  etc.,  is  to  be  described  in  the  same 
manner);  and  being  so  indebted,  the  defendant,  in  consid- 

(/)   I  Chit.    PI.  57;  8  Johns.   149. 
(y)  2  Cowen,  5S1. 
{k)  50  111.  470. 


78  ASSUMPSIT. 


Additional  count  by  executor,  etc. 


eration  thereof,  then  and  there  promised  the  said  E.  F.  to 
pay  him  the  said  sum  of  money,  on  request.  Yet  the  de- 
fendant, though  requested,  has  not  paid  the  said  sum  of 
money,  or  any  part  thereof,  either  to  the  said  E.  F.  in  his 
Hfetime.  or  to  the  pkiintirt' since  the  death  of  the  said  E.  F., 
but  refuses  to  pay  the  same  ;  to  the  damage  of  the  phiintifT, 

as  executor  as  aforesaid,  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

And  the  plaintiff'  brings  into  the  court  here  the  letters 
testamentary  to  him  granted,  whereby  it  fully  appears  to 
the  court  here  that  the  plaintiff'  is  executor  of  the  said  last 
will  and  testament  of  the  said  E.  F.,  deceased,  and  has  the 
execution  thereof,  etc. 

Where  the  plaintiffs  added  profert  of  letters  testamentary 
in  the  following  words,  it  was  held  sufficient:  "And  the 
said  plaintiffs  bring  into  court  here  the  letters  showing  their 
qualifications  as  executors."  (/) 


No.   lo.     Additional  cojint  on  ■promise  to  the  -plaintiff  as 

executor. 

{First  count  as  No.  9,  above.)  And  whereas  also  the 
defendant,  in  the  lifetime  of  the  said  E.  F.,  deceased,  to 
wit,  on  the  day  first  aforesaid,  in  the  county  aforesaid,  was 
indebted  to  the  said  E.  F.  in  the  fur.ther  sum  of dol- 
lars, fol"  other  work  before  that  time  done,  and  materials 
for  the  same  furnished,  by  the  said  E.  F.  for  the  defendant, 
at  his  request  {any  other  debt,  as  "for  otjier  goods,"  etc., 
is  to  be  described  in  like  manner) ;  and  being  so  indebted, 
and  the  last-mentioned  sum  of  money  being  wholly  unpaid, 
the  defendant,  in  consideration  thereof,  after  the  death  of 

the  said  E.  F.,  to  wit,  on  the day  of ,  in  the  year 

18 — ,  there  promised  the  plaintiff',  as  executor  as  aforesaid, 
to  pay  him  that  sum  of  money,  on  request.  Yet  the  defend- 
ant, though  requested,  has  not  paid  the  same,  or  any  part 
thereof,  to  the  plaintiff',  but  refuses  so  to  do ;  to  the  dam- 
age, etc. 

{Add profert,  as  in  last  precedent.) 

(/)  33  111.  3S3. 


ASSUMPSIT.  79 


By  husband,  and  wife,  executrix,  etc. — By  administrator,  etc 

The  ad dammnn  and  -profert  are  only  to  be  once  inserted, 
at  the  conclusion  of  the  declaration. 


No.    II.     By  husband    and  -uife^  executrix  before   mar- 
riage. 

A.  B.  and  C,  his  wife,  plaintiffs, (which  said  C.  is  exec- 
utrix of  the  last  will  and  testament  of  D.  E.,  deceased,) 
complain  of  F.  G.,  defendant,  of  a  plea  of  trespass  on  the 
case  on  promises  :  For  that  whereas  the  defendant,  on,  etc., 
was  indebted,  etc.  {here  state  the  debt  as  in  case  at  suit  of 
executor,  ante,  No.  9.)  Yet  the  defendant,  though  re- 
quested, has  not  paid  the  said  sum  of  monev,  or  any  part 
thereof,  either  to  the  said  D.  E.  in  his  lifetime,  or  to  tlie 
plaintiffs,  or  either  of  them,  since  the  death  of  the  said  D. 
E.,  but  refuses  to  pay  the  same  ;  to  the  damage  of  the  said 

A.  B.  and  C,  his  wife,  as  executrix  as  aforesaid,  of 

dollars,  and  therefore  they  bring  their  suit,  etc. 

{Add prq/ert,  as  in  Ao.  9,  ante.) 

Since  the  passage  of  the  act  of  February  21,  1861,  the 
above  precedent,  and  No.  13,  post,  are  useless  in  Illi- 
nois, [ni) 

No.  12.     J3y  an  administrator,  on  promise  to  the  intestate. 

In  the Court. 

Term,  18 — . 

State  of  Illinois,    > 

County  of ,  )  set.      A.   B.,    plaintiff',    adminis- 

trator of  the  estate  of  E.  F.,  deceased,  who  died  intestate, 
complains  of  C.  D.,  del'endant,  of  a  plea  of  trespass  on  the 
case  on  promises  :  For  that  whereas  {proceed  as  in  count 
by  exec7itor.  No.  9,  ante,  laying  the  damage  to  the  plaintiff 
"  as  administrator  as  aforesaid,"  and  add  profert,  thus:) 

And  the  plaintiff' brings  into  the  court  here  the  letters  of 
administration  to  him  granted  by  the  County  Court  of  the 

county  of ,  in  the  state  aforesaid, (c?r  whatever  court  or 

authority  granted  them,)  which  give  sufficient  evidence  to 

(»«)  32  111.  493. 


So  ASSUMPSIT. 


By  husband,  and  wife,  adm'x,  etc. — Payee  of  note  vs.  maker. 

the  court  here  of  the  grant  of  administration  of  the  said 
estate  to  the  plaintiff',  etc. 

If  deemed  advisable,  add  a  count  or  counts  on  promises 
to  the  administrator,  as  in  the  case  of  an  executor,  No.  lo, 
ante.  Where  the  declaration  contains  several  counts,  pro- 
ceed in  each  only  to  the  ad  damnum.,  which  is  to  be  stated 
at  the  conclusion,  in  a  separate  paragraph,  as  follows  : 

To  the  damage  of  the  plaintiff",  as  administrator  as  afore- 
said, of dollars,  and  therefore  he  brings  his  suit,  etc. 

(Addfrofcrt.) 

No.    13.     By  husband    and  wife.,  administratrix  before 

marriage. 

A.  B.  and  C,  his  wife,  plaintiffs,  (w^hich  said  C.  is  ad- 
ministratrix of  the  estate  of  D.  E.,  deceased,  who  died  in- 
testate,) complain  of  F.  G.,  defendant,  of  a  plea  of  trespass 
on  the  case  on  promises  :  For  that  whereas  the  defendant, 
on,  etc.,  was  indebted,  etc.  («5  in  the  precedent.,  JVo.  12, 
/«  a  suit  by  an  administrator,  and  add  breach  as  follozvs :) 
Yet  the  defendant,  though  requested,  has  not  paid  the 
said  sum  of  money,  or  any  part  thereof,  either  to  tlie  said 
D.  E.  in  his  lifetime,  or  to  the  plaintiffs,  or  either  of  them, 
since  the  death  of  the  said  D.  E.,  but  refuses  to  pay  the 
same  ;  to  the  damage  of  the  said  A.  B.,  and  C.  his  wife, 
as  administratrix  as  aforesaid,  of dollars,  and  there- 
fore they  bring  their  suit,  etc. 

(^Addprofcrt  of  letters  &f  administration.,  as  in  last  prec- 
edent.) 

SPECIAL    COUNTS. 

No.  14.      On  -promissory  note — Payee  against  maker* 

In  the Court. 

Term,  iS — ■. 

State  of  Illinois, 


County  of ,  5  set.     A.  B.,  plaintiff',  by  E.  F., 

his   attorney,   complains  of  C.    D.,   defendant,   of  a  plea 
of   trespass  on  the  case  on  promises  :  For    diat    whereas 


ASSUMPSIT. 


On  promissory  note — Payee  against  maker. 


the  defendant,    on    the    day    of  ,    in   the   year 

i8 — ,  in  the  county  aforesaid,  made  his  promissory  note, 
and  deHvered  the  same  to  the   plaintiff,  and  thereby  then 

and    there    promised   to    pay  to    the    plaintiff,  

after  the  date  thereof,  the  sum  of  dollars,  for  value 

received  :  by  means  whereot  the  defendant  then  and  there 
became  liable  to  pay  to  the  plaintiff  the  said  sum  of 
money  in  the  said  note  specified,  according  to  the  tenor 
and  effect  thereof;  and  being  so  liable,  the  defendant,  in 
consideration  thereof,  then  and  there  promised  the  plaintiff 
to  pay  him  the  said  sum  of  money,  according  to  the  tenor 
and  effect  of  the  said  note.  Yet  although  the  day  of  pay- 
ment in  the  said  note  specified  has  elapsed,  the  defendant 
has  not  paid  to  the  plaintiff  the  said  sum  of  money,  or  any 
part  thereof,  but  refuses   so  to  do  ;  to  the  damage  of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

No.  15.      On -promissory  note — Payee  against  makef. 

In  the Court. 

Term,  18 — . 

State  of  Illinois,  > 

County  of ,  >  set.     A.  B.,  plaintiff,  by  F.   F., 

his  attorney,  complains  of  C.  D.,  defendant,  ot'  a  iJt^v  of 
trespass  on  the  case  on  promises  :  For  that  whereas  the  de- 
fendant, on  the day  of ,  in  the  year  18 — ,  in  the 

county  aforesaid,  made  his  promissory  note,  and  delivered 
the  same  to  the  plaintiff,  and  thereby  then  and  there  {by  the 

name  of )  promised  to  pay,  on  or  before  the  ■- 

day  of next  after  the  date  thereof,  to  the  order  of  the 

plaindft',  {styling  him ,)  at  the Bank, 

in ,  the  sum  of dollars,  for  value  received,  zvith 

intercut  on  the  said  sum,  from  the  date  of  the  said  note,  at 

the  rate  of per  centum  per  annum :  by  means  whereof 

the  defendant  then  and  there,  to  zuit,  at  the  time  and  place 
first  aforesaid,  became  liable  to  pay  to  the  plaintiff  the 
amount  of  the  said  note,  according  to  the  tenor  and  efTect 
thereof;  and  being  so  liable,  the  defendant,  in  considera- 
tion thereof,  then  and  there  promised  the  plaintifi'  to  pay 
him  the  said  amount,  according  to  the  tenor  and  effect  of 
the  said  note. 

( The  words  in  italics  are  to  be  inserted  or  not,  or  varied, 
as  the  case  may  require.     Add  co)nmon  counts  on  the  con- 
6 


82  ASSUMPSIT. 


On  promissory  note — Payee  against  maker. 


sider  ation  Jor  which  the  note  zvas  given ^  and  the  coiuuwn 
money  counts^  interest^  and  account  stated,  laying  the  day 
in  all  the  common  counts  after  the  maturity  of  the  note^ 
and  generally  very  recently.  The  co7isolidatcd  common 
counts,  as  in  JVo.  2,  ante,  as  far  as  the  (*),  may  be  used. 
Conclude  zuith  a  general  breach,  as  follozus :) 

Yet  although  the  day  of  payment  in  the  said  note  speci- 
fied has  elapsed,  the  defendant  has  not  paid  to  the  plaintitT 
the  amount  of  the  said  note,  or  any  part  thereof,  but  refuses 
so  to  do  ;  nor  has  the  defendant,  though  requested,  paid  to 
the  plaintiff'  the  several  other  sums  of  money  above  speci- 
fied, or  any  or  either  of  them,  or  any  part  thereof,  but  re- 
fuses to  pay  him  t'he  same  :  to  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 

A  variance  between  the  note  described  in  the  special 
count  and  the  note  offered  in  evidence,  as  to  date,  or  other- 
wise, would  at  common  law  be  fatal.  But  if  the  execution 
of  the  note  is  proved,  the  note  can  be  ofTered  in  evidence 
under  common  counts,  {n) 

In  declaring  on  a  promissory  note,  it  should  be  described 
as  it  really  is ;  if  any  omission  is  made  of  any  of  the  con- 
ditions or  contingencies  upon  which  a  note  is  payable,  there 
will  oe  a  variance. 

iVo.    1 6.      On  promissory   note — Payee   against   maker. 

\_0live7'''s  Precedents,  195.] 

(^Commence  as  in  A'^o.  15,  ante.)  For  that  the  defend- 
ant, on  the  day  of  ,  in  the  year  18 — ,  in  the 

county  aforesaid,  by  his  promissory  note  of  that  date,  for 
value  received,   promised  the  plaintiff'  to  pa)'  him  or  his 

order  the  sum  of dollars, after  the  sa'fl  date, 

with  interest  on  the  said  sum,  from  that  date,  at  the  rate 

of -per  centum  -per  annum.     Yet,  though  requested, 

etc. 

It  is  better  to  add  the  common  counts  in  suits  upon  prom- 
issory notes,  bills  of  exchange  and  other  instruments  of 
writing  for  the   payment  of  money,  so   as  to   enable  the 

(«)  33  111.  372;  43  111.  155;  88  111.  477;  52  111.  205. 


ASSUMPSIT.  83 


On  several  notes,  in  one  count. 


plaintiff  to  introduce  the  note,  etc.,  in  evidence  under  them, 
in  case  he  fails  under  the  special  count,  (o) 

If  the  note  is  pa^-able  at  a  particular  place,  it  must  be  so 
averred  in  the  declaration ;  (^)  the  omission  would  cause 
a  variance,  (g) 

Where  a  cause  of  action  depends  upon  the  happening  of 
an  uncertain  event,  the  declaration  must  aver  the  happen- 
ing of  such  event,  (r) 

No.  17.      On  six  -promissory  notes,  in  one  count,    [i  Scam- 

mon,  447.] 

{Commence  as  in  No.  14,  ante,  page  80.)  For  that 
whereas  the  defendants,  on,  etc.,  in,  etc.,  made  their  six 
promissory  notes,  the  date  whereof  is  the  day  and  year 
aforesaid,  by  one  of  which  said  promissory  notes  the  de- 
fendants, on  or  before  the  i8th  day  of  May  then  next, 
promised  to  pay  to  the  order  of  the  plaintifl'  one  thousand 
dollars,  for  value  received,  with  interest  thereon  at  the  rate 
of  ten  per  centum  per  annum  after  the  same  should  become 
due  ;  and  by  another  of  the  said  promissory  notes,  the  de- 
fendants, on  or  before  the  said  iSth  day  of  May,  promised 
to  pay  to  the  order  of  the  plaintiff  one  thousand  dollars,  for 
value  received,  with  interest  thereon,  at  the  rate  often  per 
centum  per  annum,  from  the  said  i8th  day  of  Ma}^ ;  and  by 
another  of  the  said  promissory  notes,  the  defendants,  on  or 
before  the  said  18th  day  of  May,  promised  to  pay  to  the 
order  of  the  plaintiff  one  thousand  dollars,  for  value  re- 
ceived, with  interest  thereon,  at  the  rate  of  ten  per  centum 
per  annum,  after  the  said  note  should  become  due  ;  and  by 
another  of  the  said  promissory  notes,  the  defendants,  on  or 
before  the  said  i8th  day  of  May,  promised  to  pay  to  the 
order  of  the  plamtifl'  one  thousand  dollars,  for  value  re- 
ceived, with  interest  thereon  at  the  rate  of  ten  per  centum 
per  annum,  from  the  said  i8th  day  of  May ;  and  by  an- 
other of  the  said  promissory  notes,  the  defendants,  on  or 
before  the  said  i8th  day  of  May,  promised  to  pay  to  the 
order  of  the  plaintifi'  one  thousand  dollars,  for  value  re- 

{o)   19  111.  167;  24  111.  51  ;  26  111.  201  ;  34  111.  529  ;  S3  111.  2SS. 

(/)  24  111.  168. 

(y)  3  Camp.  247;  31  111.  306. 

(r)  3  Scam.  524. 


84  ASSUMPSIT. 


On  several  notes,  etc.,  in  one  count. 


ceived,  with  interest  thereon  at  the  rate  of  ten  per  centum 
per  annum,  from  the  said  i8th  day  of  May;  and  by  anothei 
of  the  said  promissory  notes  the  defendants,  on  or  before 
the  said  i8th  day  of  May,  promised  to  pay  to  the  order  of 
the  plaintiff  one  thousand  dollars,  for  value  received,  with 
interest  thereon  at  the  rate  of  ten  per  centum  per  annum, 
from  the  said  i8th  day  of  May  ;  and  by  another  of  the  said 
promissory  notes,  the  defendants,  on  or  before  the  said 
1 8th  day  of  Ma}^  promised  to  pay  to  the  order  of  the 
plaintiff  one  thousand  dollars,  for  value  received,  with  in- 
terest thereon  at  the  rate  of  ten  per  centum,  from  the  said 
1 8th  day  of  May.  Yet  the  defendants  have  not  paid  to  the 
plaintiff' the  amount  of  the  said  several  promissory  notes,  or 
of  any  or  either  of  them,  or  any  part  thereof,  but  refuse  so 
to  do  ;  to  the  damage  of  the  plaintiff"  of  ten  thousand  dol- 
lars, and  therefore  he  brings  his  suit,  etc. 

The  defendants  demurred  to  a  declaration  substantially 
in  the  above  form,  in  the  Circuit  Court  of  Madison  county, 
at  the  August  term,  1837  ;  the  demurrer  was  overruled, 
and  the  cause  taken  to  the  Supreme  Court,  where  the  decis- 
ion of  the  court  below  was  affirmed.  The  declaration  was 
decided  to  be  good  in  form  and  in  substance.  The  court, 
in  the  opinion,  says  that  "there  is  no  misdescription,  no 
incongruity  or  want  of  accuracy  or  certainty  in  the  count." 
In  our  system  of  practice,  it  is  of  infinite  importance  to 
introduce  precision  and  conciseness  ;  and  whatever  tends 
to  dispense  with  prolixity  and  useless  recapitulation  should 
be  encouraged.  (5) 

In  Chitty  on  Pleading,  it  is  laid  down  on  the  authority 
of  the  case  in  Saunders,  and  several  others,  that  several 
distinct  debts  or  contracts  may  be  included  in  one  count, 
and  the  plaintiff  will  succeed  -pro  tanto,  though  he  only 
proves  one  of  such  contracts ;  for  if  the  defendant  is  in- 
debted for  any  one  cause,  it  is  a  sufficient  consideration  for 

(5)  I  Scam.  447;  13  Johns.  4S4;  4  Johns.  284;  2  Black.  910;  Bumb.  262; 
Impey's  Mod.  PI.  207,  234,  271;  Yelv.  175;  24  111.  75. 


ASSUMPSIT.  85 


Promissory  notes — Indorsee  against  maker. 


the  promise  (which  the  law  raises)  of  the  defendant  to  pay 
the  money.  (/) 

No.   18.      On  promissory  note — Indorsee  against  Quaker. 

{Commence  as  in  No.   15,  ante.)     For  th^t  whereas  the 

defendant,  on  the day  of ,  in  the  year  18 — ,  in  the 

county  aforesaid,  made  his  promissory  note,  and  delivered 
the  same  to  one  G.  H.,  and  thereby  then  and  there  {by  the 

name  of )  promised  to  pay, after  the 

date  thereof,  to  the  order  of  the  said  G.  H.,  {styling  him 

,)  at  the Bank  in  ,  the   sum  of 

dollars,  for  value  received,  zvith  interest  on  the  said 


sum^  from  the  date  of  the  said  note,  at  the  rate  of 

^er  centum  -per  annum;  and  the  said  G.  H.  thereupon 
then  and  there,  to  wit.,  at  the  time  and ^lace  first  aforesaid, 
assigned  the  said  note,  by  indorsement  thereon  under  his 
hand,  to  one  I.  J.,  who  thereupon  then  and  there  assigned 
the  same,  by  indorsement  thereon  under  his  hand,  to  the 
plaintiff:  by  means  whereof  the  defendant  then  and  there 
became  liable  to  pay  to  the  plaintiff  the  amount  of  the  said 
note,  according  to  the  tenor  and  efiect  thereof;  and  being 
so  liable,  the  defendant,  in  consideration  thereof,  then  and 
there  promised  the  plaintiff  to  pay  him  the  said  amount, 
according  to  the  tenor  and  effect  of  the  said  note. 

(  The  words  in  italics  are  to  be  used  or  not,  or  varied, 
according  to  the  requirements  of  the  case.  Add  the  money 
counts,  interest,  and  account  stated,  and  general  breach, 
as  follows.  As  there  is  no  f)rivity  of  contract  between  in- 
dorsee and  maker,  it  is  not  usual  to  add  any  other  common 
counts.^ 

And  whereas  also  the  defendant,  on  the day  of , 

in  the  year   18 — ,  in  the  county  aforesaid,  was  indebted   to 

the  plaintiff  in  the   sum  of dollars,   for  money  before 

that  time  lent  by  the  plaintiff  to  the  defendant,  at  his  re- 
quest ;  and  in  the  like  sum  for  money  before  that  time  paid 
and  expended  by  the  plaintiff  for  the  use  of  the  defendant, 
at  his  request;  and  in  the  like  sum  for  money  before  that 
time  received  by  the  defendant  for  the  use  of  the  plaintiff; 
and  in  the  like  sum  for  intere>^t  on  divers  sums  of  money 
before  that  time   forborne  by  the  plaintiff  to  the  defendant, 

(/)  I  Chit.  PI.  301 ;  2  Saund.  122  a,  n.  2;  2  Cro.  Jac.  245. 


86  ASSUMPSIT. 


Promissory  notes — Indorsee  of  executor  against  maker. 

at  his  request,  for  divers  spaces  of  time  before  then  elapsed  ; 
and  in  the  like  sum  for  money  found  to  be  due  from  the  de- 
fendant to  the  plaintiti',  on  an  account  then  and  there  stated 
between  them:  and  being  so  indebted,  the  defendant,  in 
consideration  thereof,  then  and  there  proniised  the  plaint- 
iff to  pay  him,  on  request,  the  several  sums  of  money  so 
due  to  him  as  aforesaid. 

Yet  although  the  day  of  payment  in  the  said  note 
specified  has  elapsed,  the  defendant  has  not  paid  to  the 
plaintiff  the  amount  of  the  said  note,  or  any  part  thereof, 
but  refuses  so  to  do  ;  nor  has  the  defendant;  though  re- 
quested, paid  to  the  plaintiff  the  several  other  sums  of 
money  above  specified,  or  any  or  either  of  them,  or  any 
part  thereof,  but  refuses  to  pay  him  the  same  :  to  the  dam- 
age of  the  plaintiff  of dollars,  and  therefore  he  brings 

his  suit,  etc. 

The  allegation  in  the  above  precedent,  "assigned  the 
said  note,  by  indorsement  thereon  under  his  hand,"  con- 
forms to  the  statute  of  Illinois.  {?c)  "  Indorsed  and  deliv- 
ered the  said  note,"  is,  however,  a  sufiicient  averment,  (v) 

It  has  been  held  that  a  remote  indorsee  may  declare  as 
the  iimncdiate  indorsee  of  the  first  indorser,  or  of  an}'^  inter- 
mediate indorser — striking  out  on  the  trial  the  indorsements 
not  stated  ;  {zv)  but  it  would  seem  that  if  the  plaintiff 
wished  to  take  the  benefit  of  any  intermediate  indorser's 
title,  this  indorsement  must  be  averred,  (a*)  A  note  made 
payable  to  the  order  of  the  maker,  becomes,  by  his  indorse- 
ment and  delivery,  like  a  note  made  to  the  order  of  any 
otlier  person.  (_y) 

JSfo.  19.     Indorsee  of  an  executor  against  maker. 

(^Commence  as  in  No.  15,  ante,  ■page  81.)  For  that 
whereas  the  defendant,  on  the  day  of ,  in  the 

(w)  Rev.  Stat.  (1877)  680;   72  111.  521. 

(2O  2  Chit.  PI.  127. 

(w)  4  Esp.  211 ;  Bajley  on  Bills,  114;  Chitty  on  Bills,  51S. 

{x )  I  Gale,  19S. 

{ j)  29  111.  321- 


ASSUMPSIT.  87 


Surviving  partner  against  surviving  partner,  on  promissory  note. 

year  18 — ,  in  the  county  aforesaid,  made  his    promissory 
note,  and  dehvered  the  same  to  one  E.   F.,  and  thereby 

then  and  there  promised  to  pay, after  the  date 

thereof,  to  the  said  E.  F.,  or  his  order,  the  sum  of 

dollars,  for  value  received,  with  interest  thereon^  etc.;  and 
the  said  E.  F.  thereupon,  on  the  day  first  aforesaid,  there 
assigned  the  said  note,  by  indorsement  thereon  under  his 
hand,  to  one  G.  IL,  since  deceased:  And  the  plaintiff 
avers  that  on,  etc.,  the  said  G.  H.  there  made  his  last  will 
and  testament  in  writing,  and  thereby  then  and  there  ap- 
pointed one  J.  K.  executor  thereof;  and  afterwards,  to  wit, 
on,  etc.,  the  said  G.  H.  there  died ;  and  thereupon  the  said 
J.  K.,  on,  etc.,  there  duly  proved  the  said  last  will  and 
testament,  and  took  upon  himself  the  execution  thereof; 
and  the  said  J.  K.,  so  being  such  executor,  afterwards,  to 
wit,  on  the  day  last  aforesaid,  as  such  executor  as  afore- 
said, there  assigned  the  said  note,  by  indorsement  thereon 
under  his  hand,  to  the  plaintiff:  By  means  whereof,  etc. 
{State  liability  and  -promise.,  and  add  money  counts,  etc., 
and  breach,  as  in  last  precedent.^ 

An  administrator  or  executor,  or  one  of  several  ex- 
ecutors, may  indorse  a  promissory  note  payable  to  the  in- 
testate, or  testator,  so  as  to  vest  the  legal  interest  in  the  as- 
signee.  (^) 

JSfo.  20.     Surviving  partner  or  payee  against  surviving 
partner  or  maker,  on  a  promissory  note. 

In  the Court. 

Term,  18 — . 

State  of  Illinois, 


County  of ,  >  set.     A.   B.,  plaintiff,  by  J.   K., 

his  attorney,  complains  of  E.  F.,  defendant,  of  a  plea  of 
trespass  on  the  case  on  promises  :  For  that  whereas  in  the 
lifetime  of  one  C.  D.  and  of  one  G.  H.,  both  since  deceased, 

to  wit,  on  the day  of  ,  in  the  year  18 — ,  in  the 

county  aforesaid,  the  defendant  and  the  said  G.  H.  made 
their  promissory  note,(<^^  the  name  and  style  of  E.  P.  & 

(z)  5  Gilm.  474;  Williams  on  Ex.  796;  9  Wend.  302;   15  III.  333;    iS  111, 
116,  125. 


88  ASSUMPSIT. 


Surviving  partner  against  surviving  partner,  on  promissory  note. 

Co.,)  and  delivered  the  same  to  the  plaintiff'  and  the  said 
C.  D.,  and  thereby  then  and  there  promised  to  pay,  — — 

alter  the  date  thereof,  to  the  plaintitT  and  the  said 

C.  T)., [styling  them  by  the  name  and  style  of  A.  B.  &  Co,) 

or  their  order,  the  sum  of dollars,  for  value  received, 

-zv/th  interest  thereon,  etc. :  by  means  whereof  the  defend- 
ant and  the  said  G.  H.  then  and  there,  to  zvit,  at  the  time 
and  -place  first  aforesaid,  became  liable  to  pay  to  the  plaint- 
iff and  the  said  CD.  the  amount  of  the  said  note,  accord- 
ing to  the  tenor  and  effect  thereof;  and  being  so  liable,  the 
defendant  and  the  said  G.  H.,  in  consideration  thereof, 
then  and  there  promised  the  plaintiff"  and  the  said  C.  D.  to 
pay  them  the  said  amount,  according  to  the  tenor  and  effect 
of  the  said  note. 

{Second  count.)  And  whereas  also  -  afterwards,  in  the 
lifetime  of  the  said  C.  D.  and  G.  H.,  both  since  deceased, 
to  wit,  on,  etc.,  in,  etc.,  the  defendant  and  the  said  G.  H. 
were  indebted  to  the  plaintiff  and  the  said  C.  D.  in  the  sum 
of,  etc.  {Proceed  zviih  the  money  counts,  interest,  and  ac- 
count stated;  and  conclude  with  the  general  breach,  asfol- 
lozvs  :) 

Yet  although  the  day  of  payment  in  the  said  note  specified 
has  elapsed,  the  defendant  and  the  said  G.  H.  have  not,  nor 
has  either  of  them,  ever  paid  to  the  plaintiff  and  the  said 
C.  D.,  or  either  of  them,  the  amount  of  the  said  note,  or 
any  part  thereof;  nor  have  the  defendant  and  the  said  G. 
H.,  though  thereto  requested,  nor  has  either  of  them,  ever 
paid  to  the  plaintiff  and  the  said  C.  D.,  or  either  of  them, 
the  several  other  sums  of  money  above  specified,  or  any  or 
either  of  them,  or  any  part  thereof;  but  the  defendant  and 
the  said  G.  H.  in  his  lifetime  refused,  and  the  defendant 
has  ever  since  the  death  of  the  said  G.  H.  refused,  and 
still  refuses,  to  pay  the  same  :  to  the  damage  of  the  plaint- 
iff of dollars,  and  therefore  he  brings  his  suit,  etc. 

It  seems  it  is  not  necessary  to  declare  against  a  surviving 
partner  as  such;  he  may  be  sued  as  having  contracted 
alone,  without  noticing  the  deceased.  («) 

{a)  I  Chit.  PI.  40;  I  Johns.  Cas.  405;  i  Har.  &  Gill,  231 ;  7  Moore,  15S; 
1  B.  &  A.  29;  2  Chit.  Rep.  406;  3  B.  &  B.  302. 


ASSUMPSIT.  89 


Executor,  or  administrator,  of  payee  against  maker,  on  promissory  note. 


No.  21.     ExeciUoi'  of^ayee  against  maker ^  on  -projnissoi'y 

note. 

{Commence  as  in  No.  9,  ante,  ^age  77.)  For  that 
whereas  in  the  lifetime  of  the  said  E.   F.,  to  wit,  on  the 

day  of ,  in  the  year  18 — ,  in  the  county  aforesaid, 

the  defendant  made  his  promissory  note,  and  delivered  the 
same  to  the  said  E.  F.,  and  thereby  then  and  there  prom- 
ised to  pay,  months  after  the  date  thereof,  to  the  said 

E.  F.,  or  his  order,  the  sum  of dollars,  for  value  re- 
ceived, with  interest  thereon,  etc.:  by  means  whereof  the 
defendant  then  and  there,  to  wit,  at  the  time  and  j}lace 
first  aforesaid,  became  liable  to  pay  to  the  said  E.  F.  the 
said  sum  of  money  in  the  said  promissory  note  specified, 
according  to  the  tenor  and  effect  thereof;  and  being  so 
liable,  the  defendant,  in  consideration  thereof,  then  and 
there  promised  the  said  E.  F.  to  pay  him  the  said  sum  of 
money,  according  to  the  tenor  and  effect  of  the  said  note. 

{Add  money  counts,  etc.,  laying  the  -promises  to  the  de- 
ceased, and  conclude  with  the  breach,  as  follozus :^ 

Yet  although  the  day  of  payment  in  the  said  note  speci- 
fied has  elapsed,  the  defendant  has  not  paid  the  amount  of 
the  said  note,  or  any  part  thereof,  either  to  the  said  E.  F.  in 
his  lifedme,  or  to  the  plaintiff  since  the  death  of  the  said 
E.  F.  ;  nor  has  the  defendant,  though  thereto  requested, 
paid  the  several  other  sums  of  money  above  specified,  or 
any  or  either  of  them,  or  any  part  thereof,  either  to  the 
said  E.  F.  in  his  lifetime,  or  to  the  plaintiff'  since  the  death 
of  the  said  E.  F.  ;  but  to  pay  the  same  the  defendant  re- 
fuses :  to  the  damage  of  the  plaintiff',  as  executor,  etc. 

{Add  -prof ert,  as  in  No.  9,  ante,  page  77.) 


No.  22.     Administrator  of  payee  against  maker,  on  prom- 
issory note. 

{Comynence  as  in  No.  12,  ante,  page  79.)  For  that 
whereas  heretofore,  m  the  lifetime  of  the  said  E.  F.,  to  wit, 
on,  etc.,  in,  etc.,  the  defendant  made  his  promissory  note, 
and  delivered  the  same  to  the  said  E.  F.,  and  thereby  then 

and  there  promised  to  pay, after  the  date  thereof, 

to  the  said  E.  F.,  or  his  order,  the  sum  of  dollars, 

for  value  received,  with  interest  thereon,  etc.:  by  means 


go  ASSUMPSIT. 


Partners  against  partners,  on  promissory  note. 


whereof  the  defendant  then  and  there,  io  wit,  at  the  time 
and  -place  Jirst  aforesaid,  became  Hable  to  pay  to  the  said 
E.  F.  the  said  sura  of  money  in  the  said  promissory  note 
specified,  according  to  the  tenor  and  effect  thereof;  anrl 
being  so  Hable,  the  defendant,  in  consideration  thereof, 
then  and  there  promised  the  said  E.  F.  to  pay  him  the  said 
sum  of  money,  according  to  the  tenor  and  effect  of  the  said 
note. 

{Add  money  counts,  etc.,  laying  the  promises  to  the  de- 
ceased, and  breach,  as  in  last  precedent,  and  prof ert  as  in 
No.  12,  2in.X.Q.,page  79.) 

No.  23.     Partners,  payees,  against  partners,  makers,  on 
proniissory  note. 

In  the Court. 

Term,  18 — . 

State  of  Illinois,      ) 

County  of ,  5  set.     A.  B.,  C.  D.  and  E.  P., 

{partners  under  the  name  and  style  of  A.  B.  &   Co.,) 

plaintiffs,  by ,  their  attorney,  complain  of  G.  H.,  O.  K. 

and  P.  T.,  {partners  under  the  name  and  style  of  G.  H. 
&  Co.,)  defendants,  of  a  plea  of  trespass  on  the  case  on 
promises:  For  that  whereas  the  defendants,  on,  etc.,  in, 
etc.,  made  their  promissory  note,  (by  the  said  name  and 
style  of  G.  H.  &  Co.,)  and  thereby  then  and  there  prom- 
ised to  pay  to  the  plaintiffs,  (styling  them  by  the  said  name 

and  style  of  A.   B.  «&   Co.,)  months  after  the   date 

thereof,  the  sum  of  dollars,  for  value  received,  with 

interest  thereon,  etc.  :  by  means  whereof,  etc. 

{State  liability  and  promise,  and  add  common  comits, 
etc.,  and  general  breach,  as  in  No.  15,  ante.) 

In  a  declaration  by  or  against  partners,  it  seems  it  is  un- 
necessary to  describe  them  as  such,  (b)  and  that  part  of  the 
above  form  which  is  in  itahcs  might  be  omitted.  It  is  well, 
however,  to  state  how  the  parties  to  a  note  or  other  instru- 
ment are  therein  described. 


(A)  I  Swan's  Pr.  303,  note  a;  4  Wend.  411 ;  2  Camp.  305. 


ASSUMPSIT.  91 


Payee  against  husband  and  wife — Indorsee  against  indorser. 

JVo.   24.     Payee  against  husband  and  zvife,  ^n  note  given 
by  wife  while  sole.      [2  Chit.  PI.   13^-] 

{Commence  as  in  JVo.  8,  ante,  'page  76.)  For  that 
whereas  the  said  E.  heretofore,  and  while  siie  was  sole  and 
unmarried,  to  wit,  on,  etc.,  at,  etc.,  made  her  certain  prom- 
issory note  in  writing,  bearing  date  the  day  and  year  afore- 
said, and  thereby  then  and  there  promised  to  pay  {tvjo) 
months  after  the  date  thereof,  to  the  plaintiff,  or  order,  the 

sum  of dollars,  for  value  received,  and  then  and  there 

delivered  the  said  promissory  note  to  the  plaintiff:  b\'  means 
whereof  the  said  E.  then  and  there  became  liable  to  pay 
to  the  plaintiff  the  said  sum  of  money  in  the  said  promis- 
sory note  specified,  according  to  the  tenor  and  effect  of  the 
said  promissory  note  ;  and  being  so  liable,  she  the  said  E., 
in  consideration  thereof,  afterwards,  and  while  she  was  sole 
and  unmarried,  to  wit,  on  the  day  and  year  aforesaid,  at, 
etc.,  aloresaid,  promised  the  plaintiff  to  pay  him  the  said 
sum  of  money  in  the  said  promissory  note  specified,  ac- 
cording to  the  tenor  and  effect  thereof. 

{Add  money  counts.,  etc.,  ajid  breach.  See  yVc.  8,  ante, 
fage  76.) 

JVo.  25.  Pidorsee  against  indorser  of  a  -promissory 
note.,  alleging  institution  and  prosecution  of  suit  against 
■maker. 

{Commence  as  in  JVo.  15,  ante,  page  81.)  For  that 
whereas  one  E.  F.,  on,  etc.,  in,  etc.,  made  his  promissory 
note,  and  delivered  tiie  same  to  the  defendant,  and  thereby 

then  and  there  promised  to  pay, after  the  date 

thereof,  to  the  defendant,  or  his  order,  the  sum  of dol- 
lars, for  value  received,  with  interest  thereon,  etc.;  and 
thereupon  the  defendant,  on  the  day  Jirst  aforesaid,  there 
indorsed  and  delivered  the  said  note  to  the  plaintiff:  And 
although  on,  etc.,  the  said  note  became  due,  the  said  E.  F. 
did  not  nor  would  then,  or  before  or  since  that  time,  pay  to 
the  plaintiff  the  amount  of  the  said  note,  or  any  part  of  the 
same.  And  the  plaintiff  avers,  that  thereupon,  on,  etc.,  he 
impleaded  the  said  E.  F.  in  a  plea  of  trespass  on  the  case, 

on  the  said  note,  in  the Court  of  the  said  county  of 

, (where  the  said  E.  F.  then  resided,)  to  the term 

of  that  court,  in  the  same  year  ;  and  sucli  proceedings  were 


92  ASSUMPSIT. 


On  promissory  note — Indorsee  against  indorser. 

thereupon  had  in  that  plea,  that  in  the  same  term,  to  wit, 
on,  etc.,  by  the  consideration  of  the  same  court,  the  plaintiff^ 

recovered  against  the  said  E.  F.  the  sum  of dollars, 

damages,  as  well  as  the  costs  of  the  plaintiff'  by  him  about 
his  suit  in  that  behalf  expended,  whereof  the  said  E.  F.  was 
convicted ;  and  the  said  judgment  being  in  full  force,  and 
the  said  damages  and  costs  remaining. wholly  unpaid,  the 
plaintiff,  on,  etc.,  for  obtaining  satisfaction  thereof,  sued  out 
of  the  same  court  a  writ  oi  Jie^'i  facias,  directed  to  the 

sheriff'  of  the  said  county  of ,  by  which  said  writ  the 

People  of  the  said  state  of  Illinois  commanded  the  said 
sheriff"  that  of  the  goods  and  chattels,  lands  and  tenements, 
in  his  county,  of  the  said  E.  F.,  the  said  sheriff'  should 
cause  to  be  made  the  damages  aforesaid,  and  the  sum  of 

dollars,   the   costs    aforesaid,   together  with   interest 

thereon  at  the  rate  of  six  per  centum  per  annum  from  the 
time  of  recovering  the  same  as  aforesaid,  and  also  the  fur- 
ther sum  of ,  accruing  costs  on  the  said  judgment, 

and  that  the  said  sheriff' should  have  those  moneys  ready  to 
render  to  the  plaintiff",  according  to  law,  and  should  make 
return  of  the  said  writ  in  ninety  days  after  the  date  thereof; 
which  said  writ,  on  the  day  last  aforesaid,  was  there  deliv- 
ered to  the  said  sheriff'  to  be  executed  ;  and  on  the  return- 
day  of  the  said  writ,  to  wit,  on,  etc.,  the  said  sheriff'  re- 
turned to  the  same  court  upon  the  said  writ  to  the  eff'ect 
that  in  his  county  the  said  E.  F.  had  not  any  goods  or  chat- 
tels, lands  or  tenements,  whereof  he  the  said  sheriff' 
could  cause  to  be  made  the  damages  and  costs  aforesaid, 
or  any  part  thereof:  And  so  the  plaintiff'  says,  that  before 
the  commencement  of  this  suit  he  used  due  diligence,  by 
the  institution  and  prosecution  of  a  suit  against  the  said  E. 
F.,  to  make  of  the  said  E.  F.  the  amount  of  the  said  note, 
but  without  avail.  By  means  whereof  the  defendant,  on  the 
day  last  aforesaid,  having  notice  of  the  premises,  there 
became  liable  to  pay  to  the  plaintiff",  on  request,  the  amount 
of  the  said  note,  and  the  costs  aforesaid;  and  being  so  lia- 
ble, the  defendant,  in  consideration  thereof,  then  and  there 
promised  the  plaintiff"  to  pay  him  the  said  amount,  and  the 
costs  aforesaid,  on  request.  Yet  the  defendant,  though  re- 
quested, has  not  paid  the  sanie,  or  any  part  thereof,  to  the 
plaintiff",  but  refuses  so  to  do  ;  to  the  damage  of  the  plaintiff' 
of dollars,  and  therefore  he  brings  his  suit,  etc. 


ASSUMPSIT.  93 


On  promissory  note — Indorsee  against  indorser. 

{^Fovm  No.  26,  following^  may  be  adapted  and  used  as 
a  second  coicnt.) 

By  the  statute  of  Illinois,  the  assignor  of  a  negotiable 
instrument  is  liable  to  the  action  of  the  assignee,  if  the  lat- 
ter has  without  avail  used  due  diligence,  by  the  institution 
and  prosecution  of  a  suit,  to  compel  the  m.aker  to  pay  the 
debt;  but  the  assignee  is  excused  from  using  such  dili- 
gence, first,  where  the  institution  of  a  suit  against  the 
maker  would  have  been  unavailing,  or,  secondly,  where 
the  maker  had  absconded,  or  left  the  state,  when  the  instru- 
ment became  due.  [c) 

Upon  a  note  assigned  after  maturit}^  the  assignor  is 
chargeable  if  the  assignee  has  been  unable  to  compel  pay- 
ment by  the  maker,  after  using  due  diligence  by  suit,  or  if 
such  suit  would  have  been  unavailing,  [d) 

An  indorsement  without  date  is  presumed  to  have  been 
made  at  the  date  of  the  note  ;  but  this  presumption  may  be 
rebutted,  {e) 

The  assignee  is  not  bound  to  give  the  assignor  notice  of 
non-payment.  Presentment  of  the  note  to  the  maker  at 
maturity,  and  notice  to  the  assignor  of  non-payment,  will 
not,  under  the  statute  of  Illinois,  give  a  right  of  action 
against  the  latter.  {/) 

A  guaranty  of  a  note,  by  the  payee  or  assignee,  operates 
also  as  an  assignment ;  {g)  and  if  an  unauthorized  guar- 
anty is  written  over  an  assignor's  signature,  the  contract  of 
assignment  is  not  thereby  invalidated  or  affected,  [h) 

In  an  action  by  an  assignee  against  an  assignor,  it  is  not 
competent  for  the  latter  to  prove  a  verbal  agreement  made 

[c)  Rev.  Stat.  (1877)  6S1  ;  77  111.  490,  620;  85  111.  511. 

(rt-)  15  III.  263.  See  14  111.  144;  86  111.  165;  75  111.  452;  83  111.  540:89 
111.  71. 

{e)  41  111.  409;  45  111.  306;  53  111.  466;  54  111.  296;  89  111.  193  ;  87  111. 
115;  85  111.  523. 

(/)  I  Scam.  580;  3  Scam.  344;   H  HI-  144-     OO  5(1  6~-^K  J   X'i  Jfr  Jet  A     V^l//  Un 

(^^)3Scam.  459;  37111-286;   38  111.437-  ''  ^  '  ^  "-^ \   i  NW  11 

(/O  44  111.  321. 


94  ASSUMPSIT. 


Indorsee  against  indorser  of  note — Measure  of  damages. 

at  the  time  of  the  indorsement  of  the  note,  to  the  effect  that 
he  should  not  be  liable  as  indorser.  (/) 

Bat  where  the  payee  of  a  note  sold  and  delivered  it  after 
it  became  due,  and  some  time  afterwards  indorsed  it,  with- 
out consideration,  and  solely  for  the  purpose  of  enabling 
the  indorsee  to  sue  thereon  in  his  own  name,  and  with  the 
express  agreement  that  the  indorser  should  not  be  liable  by 
reason  of  his  indorsement,  it  was  held  that  such  indorser 
was  not  liable  in  an  action  by  remote  indorsees  of  the 
note.  {J) 

The  indorser  is  liable  according  to  the  law  of  the  place 
of  indorsement,  (/^')  unless  the  indorsement  specially  pro- 
vides that  his  liability  is  to  be  governed  by  the  law  of  some 
other  state.  (/) 

The  remote  assignor  of  a  note  is  liable  to  an  action  by 
the  last  assignee,  upon  any  ground  upon  which  an  assignor 
can  in  an}^  case  be  made  liable.  («z)  It  is  unnecessary,  in 
such  action  against  a  remote  assignor,  to  set  forth  the  inter- 
mediate indorsements,  but  the  plaintiff  may  simply  a\'er 
that  the  defendant  indorsed  the  note  to  him.  (;z)  And  it 
seems  that  the  right  of  an  assignee  to  sue  a  remote  assignor 
will  not  be  impaired  by  the  fact  that  the  former  has  obtained 
a  judgment  against  an  intermediate  assignor,  {o) 

Where  there  are  several  indorsements  on  a  note,  the  con- 
secutive indorsers  are  liable  severally  only,  and  can  not  be 
sued  jointly.  (_^) 

Meastirc  of  damages. — In  a  suit  by  an  assignee  against 
an  assignor  of  a  note,  the  measure  of  damages  is  the  amount 
paid  by  the  assignee  for  the  note,  with  interest  on  that 

(0  54  111-  349- 

(/)  2  Scam.  430. 

[k)   2  Scam.  467  ;  89  Til.  222. 

(/)    12  Wend.  439. 

(w)  2  Scam.  429 ;  3  Scam.  250 ;  20  111.  59. 

(m)  2  Scam.  429 ;  Chit,  on  Bills,  10  Am.  ed.  572. 

[0)    2  Scam.  429. 

(/)   I  Scam.  470;  85  111.442,  511. 


ASSUMPSIT.  95 


Indorsee  against  indorser — Diligence  required. 


amount,  (^)  with  the  limitation  that  the  recovery  must  not 
exceed  the  sum  due  upon  the  face  of  the  note  ;  (r)  and  it 
is  said  the  plaintiff's  costs  in  the  suit  against  the  maker  are 
recoverable  in  the  suit  against  the  assignor.  (5) 

Kind  and  degree  of  diligence  required  against  the 
maker. — Diligence,  to  charge  the  assignor,  must  be  by 
suit,  (/)  and  the  absence  of  the  maker  from  the  county  is 
not  a  sufficient  excuse  for  not  bringing  suit,  {ii)  Such  suit 
must  be  brought  to  the  lirst  term  of  court  after  the  note  falls 
due.  {v)  But  where  it  was  previously  announced  by  the 
judge  that  the  term  would  not  be  held,  it  was  decided  that 
the  assignee  was  not  required  to  bring  suit  to  such  term  ;  [zv') 
and  it  seems  he  would  be  excused  from  commencing  his 
action  at  the  first  term,  if  unable  by  diligent  effort  to  ascer- 
tain in  time  the  residence  of  the  maker,  {x)  Where  the 
amount  is  within  the  jurisdiction  of  a  justice  of  the  peace, 
it  has  been  held  that  a  suit  brought  on  the  note,  before  a 
justice,  within  three  days  after  maturity,  was  in  good 
time,  {y)  And  it  seems  the  assignee  ought  to  sue  before 
a  justice,  if  the  amount  is  within  a  justice's  jurisdiction,  and 
satisfaction  of  the  debt  could  thus  be  sooner  obtained,  iz) 

Suit  must  not  only  be  brought,  but  everything  in  the  as- 
signee's power  must  be  done  to  obtain  judgment,  at  tJie  first 
term,  {a)  And  he  must  proceed  with  diligence  to  enforce 
the  judgment  by  execution,  imless  it  can  be  clearly  sliown 
that   execution  would  be   unavailing,    (h)     If   a   justice's 

{q)   2  Sc;,m.  561  ;   2  Gilm,  T^S; 
(/-)   54  111.  337;  76  111.  245. 

(«)   39  111-  31- 

(/)  Breese,  39. 

{«)  Breese,  66. 

(z/)  Breese,  84;  22  111.  35;  S:  111.  511,  535. 

(w)  3  Gilm.  92. 

(jr)  4  Gilm.  14. 

(y)  2  Scam.  551". 

(z)  20  111.  104. 

(«)  4  Gilm.  3. 

(b)  2  Gilm.  II :  89  111.  221. 


96  ASSUMPSIT. 


Indorsee  against  indorser  of  note — Diligence  required. 

judgment,  execution  must  be  sued  out  thereon,  and  re- 
turned "no  propert}',"  and  then  a  transcript  of  the  judg- 
ment must  be  filed  in  the  office  of  the  clerk  of  the  Circuit 
Court,  and  execution  issued  thereon,  so  as  to- reach  any 
real  estate  of  the  maker,  and  such  execution  must  be  re- 
turned in  like  manner,  (c) 

But  the  assignee  is  not  bound  to  apply  to  a  court  of 
chancer}^  to  remove  obstructions  in  the  way  of  an  execution 
against  the  property  of  the  maker  ;  (d)  nor,  it  would  seem, 
to  have  a  ca.  sa.  issued ;  [e)  nor  to  resort  to  process  of 
garnishment  against  debtors  of  the  maker — not,  at  least, 
unless  the  assignee  had  notice  of  the  existence  of  the  debts, 
if  indeed  he  is  bound  in  any  event  to  pursue  that  rem- 
edy ;  {/)  nor  to  present  his  claim  in  the  United  States  Dis- 
trict Court,  in  a  proceeding  in  bankruptcy  against  the 
maker;  [g)  nor,  it  would  seem,  to  cause  goods  of  a  non- 
resi4ent  maker  to  be  attached  in  transitu,  [h) 

The  execution  must  remain  in  the  officer's  hands  during 
its  whole  lifetime  ;  or,  if  returned  before  the  expiration  of 
that  time,  the  assignee  must  aver  and  prove  that  its  further 
continuance  in  the  hands  of  the  officer  would  have  been 
unavailing.  (/) 

The  execution  must  issue  to  the  county  in  which  the  suit 
was  brought;  {J)  and  the  assignee  is  not  required  to  seek 
elsewhere  with  an  execution  for  property  of  the  maker ; 
though  if  the  maker  has  property  in  another  county,  and 
that  fact  is  known  to  the  assignee,  it  would  seem  that  he 
ought  to  endeavor  to  make  his  money  out  of  such  prop- 
erty, {k) 

(c)  2  Scam.  370. 
(rf)  4  Scam.  3S6. 
(e)  2  Scam.  359. 
(/)  14  III.  146. 
{g)  54  111.  472. 

(/O  54  111-  349- 

(  X  )  22  111.  211,  362. 

(J)  4Gilm.  18;  22  III.  362. 

(/•)  4  Gilm.  3. 


ASSUMPSIT.  97 


Indorsee  asrainst  indorser  of  note— Diligence  required. 


The  suit  against  the  maker  must  be  brought  in  the  county 
where  he  resides,  and  the  assignee  is  not  required  to  sue  in 
any  other.  (/)  If  however  his  residence  is  wholly  un- 
known to  the  assignee,  the  latter  may  elect  to  consider  as 
the  place  of  the  maker's  residence  the  county  where  the 
note  was  made,  if  he  is  found  there,  {in) 

If  the  assignee,  by  reasonable  diligence,  might  have 
known  of  property  of  the  maker,  sufficient  to  satisfy  the 
debt,  in  the  county  where  the  suit  against  the  latter  was 
brought,  the  former  can  not  recover  against  the  assignor,  {n) 
If  the  maker  has  property  worth  more  than  any  incum- 
brance on  it,  it  is  the  duty  of  the  assignee  to  have  it  levied 
on,  and  at  least  offered  for  sale  ;  and  whenever  others  set 
up  claims  to  property  in  possession  of  the  maker,  the  as- 
signee is  bound  to  contest  those  claims,  or  take  the  respon- 
sibility of  showing  their  validity,  (o)  He  is  not  required, 
however,  to  cause  his  execution  to  be  levied  on  property 
exempt  by  law,  upon  the  bare  possibility  that  the  debtor 
will  not  insist  on  the  exemption.  (/) 

The  assignor  will  be  liable  where  the  assignee  is  unable 
to  compel  payment  from  the  maker  by  reason  of  fraud  or 
other  matter  in  the  orig-inal  contract  between  the  maker  and 
the  payee,  [q) 

It  will  be  seen  from  the  authorities  cited  that  the  assignee 
may  excuse  any  neglect,  or  cessation  of  effort,  on  his  part, 
in  his  proceedings  against  the  maker,  by  showing  that  any 
greater  or  further  diligence  would  have  availed  nothing. 

See  further,  as  to  the  rights  and  liabilities  of  the  parties 
in  suits  by  assignees  against  assignors  of  negotiable  paper, 
the  cases  noted  below,  ir) 

(I)  4Gilm.  3;  37  111.  2S6. 
(tn)  4  Gilm.  3. 
{n)  20  111.  605. 
(<?)  20  111.  64;  22  111.  361. 
(p)  14  111.  146. 
(7)  2  Gilm.  6S4. 

(r)  20  111.  104;  35  111.  434;  41  111.  363,  409;  42  111.  293;  43  111.  40;  49  111 
tS2;  52  111.  255;  54  111.  379. 

7 


98  ASSUMPSIT. 


Indorsee  against  indorser — Suit  against  maker  unavailing. 


JVo.  26.     Indorsee  against  indorser  of  promissory  note — 
Suit  as:ainst  the  maker  iinavailin<z. 

{State  making  and  indorsement  of  note  ^  as  in  last  prece' 
dent  and  proceed  thus  :^  And  although  on,  etc.,  the  said 
note  became  due,  the  said  E.  F.  did  not  nor  would  then,  or 
at  any  time  before  or  afterwards,  pay  to  the  plaintiff  the 
amount  of  the  said  note,  or  any  part  thereof;  (*)  and  the 
plaintiff  avers  that  the  said  E.  F.  was  when  the  said  note 
became  due  as  aforesaid,  and  from  thence  hitherto  has  con- 
tinued to  be,  insolvent,  and  unable  to  pay  the  said  amount, 
or  any  part  'thereof,  wherefore  the  institution  of  a  suit 
against  him  on  the  said  note,  at  that  time  or  afterwards, 
would  have  been  unavailing  ;  of  which  premises  the  defend- 
ant then  and  there  had  notice  :  By  means  whereof,  the  de- 
fendant then  and  there  became  liable  to  pay  to  the  plaintiff, 
on  request,  the  amount  of  the  said  note  ;and  being  so  liable, 
the  defendant,  in  consideration  thereof,  then  and  there 
promised  the  plaintiff  to  pay  him  the  said  amount,  on 
request.  Yet  the  defendant,  though  requested,  has  not  paid 
the  same,  or  any  part  thereof,  to  the  plaintiff,  but  refuses 

so  to  do ;  to  the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc. 

It  is  not  sufficient  to  allege  in  the  declaration,  in  the 
general  terms  used  in  the  statute,  that  a  suit  against  the 
maker  would  have  been  unavailing.  The  declaration  must 
show  whv  such  suit  would  have  been  useless,  as  that  the 
maker  was  insolvent,  or  that  the  note  was  made  without 
any  consideration,  and  was  assigned  after  m.aturity.  (5) 

It  is  not  enough  that  the  maker  was  insolvent  at  the  ma- 
turity of  the  note,  but  such  insolvenc}'  must  have  continuec^ 
up  to  the  time  of  the  commencement  of  the  suit  against  the 
assignor.  If,  at  the  maturity  of  the  note,  a  suit  against  thp 
maker  would  be  unavailing,  the  assignee  ma}'  proceed  at 
once  against  the  maker;  but  if  the  assignee  will  not  do  this, 
he  must  be  prepared  to  show  that  ever  since  the  note  be- 
came due  such  suit  would  have  been  alike  unavailing.  (/) 

{/)  I  Scam.  53;  2  Scam.  354;  4  Scam.,  385;  15  111.  264. 


U)  4  Scam.  3S5 


ASSUMPSIT.  99 


Indorsee  against  indorser,  maker  having  absconded,  etc. 


In  order  to  charge  the  assignor  on  the  ground  of  the 
maker's  insolvenc}',  it  should  appear  not  simply  that  his 
liabilities  exceeded  his  means  of  payinent,  but,  in  the  lan- 
guage of  the  statute,  that  the  institution  of  a  suit  against 
him  would  have  been  unavailing,  {u) 

But  where  the  maker  has  only  the  kind  and  amount  of 
property  which  is  exempt  from  execution,  the  assignee  is 
not  bound  to  proceed  against  him  before  the  assignor  can 
be  charged,  {v) 

Though  the  maker  may  have  been  solvent  at  the  matu- 
rity of  the  note,  yet  the  assignor  is  not  released  from  lia- 
bility unless  such  solvency  continued  until  a  suit  could  have 
been  made  availing,  {w) 

If  it  appears  that  by  the  use  of  proper  diligence  the 
maker  could  have  been  compelled  to  pay  any  considerable 
part  of  the  debt,  the  assignor  will  only  be  liable  for  the 
residue,  (.v) 

A^o.  27.     Indorsee    against  indorser,  the   maker  having 
absconded,  or  left  the  state. 

{As  in  last  precedent  to  the  (*),  and  then  -proceed  thus :) 
And  the  plaintiff  avers,  that  before  the  said  note  became 
due  as  aforesaid,  to  wit,  on,  etc.,  the  said  E.  F.  absconded 
and  left  the  said  state  of  Illinois,  and  from  thence  hitherto 
has  remained  out  of  the  said  state  ;  of  which  premises  the 
defendant,  on,  etc.,  there  had  notice  :  By  means  whereof, 
etc.  {State  liability,  promise,  and  breach,  as  in  last  prec- 
edent.) 

If  the  maker  is  absent  from  the  slate  at  the  time  when, 
in  order  to  fix  the  liability  of  the  assignor,  a  suit  should  be 
commenced  against  the  maker,  or  at  the  first  term  after  the 
note  falls  due,  then  the  assignor  is  liable,  {y)  The  as- 
signee is  not  bound  to   pursue   the  maker  into  a  foreign 

{»)  4  Gilm.  3;  52  III.  255. 

{v)    14  111.  146;  22  111.  210. 

(tc;)  32  111.  325. 

(x)  32  111.  325. 

[y)   3  Scam.  344;  54  111.  349;  75  111.  453;  77  111.  490. 


loo  ASSUMPSIT. 


Payee  against  guarantor  of  promissory  note. 


jurisdiction,  but  may  at  once  resort  to  the  assignor  for  pay- 
ment. The  circumstance  that  the  maker  resided  in  an- 
other state,  and  that  this  was  known  to  the  assignee  when 
he  received  the  note,  does  not  vary  the  liabihty  of  the  as- 
signor, which  is  the  same  whether  the  maker  left  the  state 
after  making  the  note,  or  never  lived  in  the  state,  (z)  But 
the  Supreme  Court  has  said  that  the  liability  of  an  assignor 
does  not  arise  from  a  mere  temporary  absence  of  the  maker 
from  the  state  when  the  note  falls  due,  or  when  the  suit  is 
about  to  be  commenced,  (a) 

In  a  case  where  the  maker  resided  in  another  state,  at 
and  ever  after  the  time  of  the  making  of  the  note,  which 
was  assigned  ajKcr  it  became  due,  it  was  held  that  the  con- 
tract of  the  assignor  was  that  he  would  pay  the  money  if  it 
could  not  be  made  of  the  maker  by  the  use  of  diligence 
by  suit,  or  if  a  suit  would  be  unavailing ;  and  that  the  case 
was  not  within  that  clause  of  the  statute  which  makes  the 
assignor  liable  if  the  maker  is  not  within  the  state  when 
the  note  matures,  (d) 

The  liability  of  the  assignor  having  once  attached,  by 
reason  of  the  abse'nce  of  the  maker  from  the  state  at  the 
maturity  of  the  note,  it  seems  that  liability  would  not  be 
discharged  although  the  maker  was  frequently  in  the  state, 
buying  goods  and  shipping  them  away,  after  the  note  be- 
came due,  and  before  suit  brought  against  the  assignor, 
and  this  was  known  to  the  assignee,  (c) 

TVb.  28.     Payee  against  guarantor  of  promissory  note» 

[Commence  as  in  No.  15,  ante,  'page  81.)  For  that 
whereas  one  E.  F.,  on,  etc.,  in  the  county  aforesaid,  made 
his  promissory  note,  and  thereby  then  and  there  promised 

to  pay, after  the  date  thereof,  to  the  plaintiff,  or 

his  order,  the  sum  of dollars,  for  value  received,  with 

'^z)  12  111.  418;  54  111.  349. 
(rt)  3  Scam.  344. 
(V)  15  111.  263.     See  14  111.  144. 
(c)  54  111.  349. 


ASSUMPSIT.  loi 

Payee  against  guarantor  of  promissory  note. 

interest  thereon,  etc.;  and  tliereupon, on  the  day^frs^  afore- 
said, in  consideration  that  the  plaintiff,  at  the  request  of  the 
defendant,  would  accept  and  receive  of  the  said  E.  F.  the 
said  note,  the  defendant,  by  his  indorsement  thereon,  there 
guarantied  the  payment  of  the  said  sum  of  money,  and 
promised  the  plaintiff  to  pay  him  the  same,  according  to 
the  tenor  and  effect  of  the  said  note,  if  the  said  E.  F. 
should  not  so  pay  the  same.  And  the  plaintiff  avers,  that 
thereupon  he,  confiding  in  the  said  undertaking  of  the  de- 
fendant, then  and  there  accepted  and  received  of  the  said 
E.  F.  the  note  aforesaid ;  and  that  although  the  day  of 
payment  in  the  said  note  specified  has  elapsed,  the  said 
E.  F.  did  not  nor  would  on  that  day,  or  at  any  other  time, 
pay  to  the  plaintiff  the  amount  of  the  said  rfote,  or  any  part 
thereof,  but  refused  so  to  do  ;  whereof  the  defendant,  on 
the  day  last  aforesaid,  there  had  notice.  Yet  the  defendant 
has  not  paid  to  the  plaintiff  the  amount  of  the  said  note,  or 
any  part  thereof,  but  refuses  so  to  do  ;  to  the  damage  of 

the  plaintiff  of  dollars,  and  therefore  he  brings  his 

suit,  etc. 

The  liability  of  the  guarantor  of  a  promissory  note  does 
not  depend  upon  the  use  of  diligence  in  prosecuting  the 
maker,  etc.,  nor  is  any  demand  necessary,  or  notice  of  non- 
payment, to  fix  such  liabilit}'.  Upon  the  failure  of  the 
maker  to  pay  at  the  maturity  of  the  note,  the  holder  may 
at  once  sue  the  guarantor,  and  recover  the  amount  due.  {d) 
But  it  is  said  that  the  defendant  may  discharge  himself  from 
liability  by  showing  laches  on  the  part  of  the  plaintiff,  such 
as  an  omission  to  make  demand  and  ffive  notice  within  a 
reasonable  time,  and  a  consequent  injury — the  burden  of 
proof  being  on  the  defendant,  {e) 

In  an  action  on  a  guaranty  of  a  note,  it  is  necessary  to 
aver  and  prove  a  consideration  ;  but,  in  the  absence  of 
proof  to  the  contr^Ty,  the  presumption  is  that  the  guaranty 
was  maae  when  the  note  was  executed,  in  which  case,  the 
guaranty  being  a  part  of  the  original  transaction,  the  con- 

{d)  3  Scam.  489,  497  ;  13  111.  682  ;  14  111.  237  ;  iS  111.  54C;  21  111.  638  ;  86 
111.  60. 

{e)   3  Scam.  489.  See  79  111.  62  ;  72  111.  1 1. 


I02  ASSUMPSIT. 


Payee  against  guarantor  of  promissory  note. 


sideration  of  the  note  is  the  consideration  of  the  guaranty, 
and  no  new  consideration  needs  to  be  shown.  Where 
however  it  appears  that  the  guaranty  was  made  after  the 
note  was  delivered,  the  plaintiff  must  show  a  new  consid- 
eration. (/") 

A  guaranty  by  the  -payee  needs  no  new  consideration, 
though  made  long  after  the  execution  of  the  note.  { g) 

A  blank  indorsement  of  a  promissor}^  note,  at  the  time 
of  its  execution,  by  a  person  not  a  party  to  the  note,  is 
evidence  frima  facie  of  a  liability  as  guarantor,  and  is 
authority  to  a  holder  in  good  faith  to  write  a  guaranty  over 
the  signature.  This  presumption  may,  however,  be  rebut- 
ted. {Ji) 

Where  however  the  payee  or  holder  of  a  note  has  in- 
dorsed it  in  blank,  the  presumption  is  only  that  he  assumed 
the  liability  imposed  by  the  statute  upon  an  assignor,  and 
the  blank  may  be  filled  with  the  assignment  usually  em- 
ployed for  the  transfer  of  such  paper.  (/) 

The  general  rule  is,  that  an  indorsement  in  blank  gives 
authority  to  the  holder  of  the  instrument  to  fill  up  the  in- 
dorsement by  writing  over  the  signature  anything  consistent 
with  the  nature  of  the  instrument  and  the  intention  of  the 
parties,  {j) 

Although  the  signature  of  a  third  person  on  the  back  of 
a  note  in  the  hands  of  the  payee,  is  evidence  -pi-ima  facie 
of  the  liability  of  such  third  person  as  a  guarantor,  yet  it 
seems  that  where  a  note  has  gone  into  circulation,  and 
passed  under  blank  indorsements,  from  holder  to  holder,  it 

(/)  13  111.  6S2;  14  111.  -37;  18  111.  54S;  20 111.  367;  26  111.  61;  29  111.  30S; 

8 Johns.  29;  II  Johns.  221 ;  19  Wend.  557  ;  26  Wend.  425  ;  3  Car.  &  Payne, 
162;  8  Greenl.  234;  12  Peters,  207 ;  16  East,  356;  2  N.  H.  413 ;  2  Hall,  14S; 
10  Pick.  147;  6  Yerger,  41S;  4  Pick.  385;  7  Pick.  242;  Story  on  Bills,  sec. 

458  ;   2  Story  on  Con.,  Sec.  865  ;  73  111.  343. 

{g)  37  111.  286. 

iji)  3  Scam.  437,  497;  17  III,  466;  29  III.  308;  38  111.  20S;  51  111.  435;  73 
111-  378;  75  111  629;  89  111.  550,  q8i;  79  JU.  145;  '&1  111.  39,  120. 

{i)   21  111.  638. 

(y)  3  Scam.  437;  17  111.  459;  21  111.  637;  79  111.  145;  90  111.  396. 


ASSUMPSIT.  103 


Payee  against  drawer,  on  order  not  accepted. 


ought  to  be  shown  that  the  name  of  the  person  sought  to 
be  held  liable  as  guarantor  was  on  the  note  while  in  the 
hands  of  the  payee,  (k) 

A  note  payable  to  the  order  of  the  maker  has  no  validity 
until  his  name  is  indorsed  thereon  ;  and  another  person 
writing  his  name  on  it  before  it  is  thus  indorsed,  undertakes 
that  when  the  note  takes  effect  his  name  shall  appear  thereon 
as  second  indorser.  His  contract  is  not  that  of  a  guar- 
antor. (/) 

Where  an  assignor  of  a  note  guaranties  it,  the  holder 
may  recover  upon  the  contract  of  assignment  or  upon  the 
guaranty,  as  he  may  choose.  (;;/) 

A  guarantor  is  not  liable  beyond  the  express  terms  of  his 
contract,  and  a  material  alteration  of  such  terms  will  avoid 
it.  (n) 

By  the  words,  "  I  guaranty  the  collection  of  the  \N\\}caxv 
note,"  the  liability  of  an  assignor  is  neither  increased  nor 
diminished.     He  is  simply  liable  as  an  assignor,  [p] 

On  the  subject  of  guaranty,  the  additional  authorities 
noted  below  may  be  consulted.  ( ^) 

iVb.  29.     Payee  against  drazver^  on  an  order  not  accented. 

(^Commence  as  in  No.  15,  ante,  fage  81.)  For  that 
whereas  the  defendant,  on,  etc.,  in,  etc.,  made  his  order  in 
writing,  and  delivered  the  same  to  the  plaintiff,  and  thereby 
then  and  there  requested  one  E.  F.  to  pay  to  the  plaintiff, 

or  his  order,   the   sum   of  dollars,  on   demand,  and 

charge  the  same  to  the  account  of  the  defendant  :  And  the 
plaintiff  avers,  that  on  the  day  aforesaid  he  there  presented 
the  said  order  to  the  said  E.  F.,  and  requested  him  to  ac- 
cept the  same,  and  pay  the  said  sum  of  mone}^ ;  but  that 

(/CO  17  111.  459. 

(O  35  111- 434- 
(;«)2illl.  637. 
(«i  24  111.  206. 
(tf)  37  111.  2S6. 

(/)  33  111-  30S;  35  111-  349;  36  111-  186;  38  111.  437-;  39111-  574;  40  111.  155; 
41  111.  409;  42  111.  294;  43  111.  40;  44  III.  321,  510;  47  III.  125;  51  111.  106, 

439- 


104  ASSUMPSIT. 


Payee  of  a  check  agjainst  drawer. 


the  said  E.  F.  did  not  nor  would  then  or  afterwards  accept 
the  said  order,  or  pay  the  said  sum  of  money,  or  any  part 
thereof,  but  refused  so  to  do  ;  whereof  the  defendant  then 
and  there  had  notice  :  By  means  whereof  the  defendant 
then  and  there  became  liable  to  pay  to  the  plaintiff,  on  re- 
quest, the  said  sum  of  money ;  and  being  so  liable,  the 
defendant,  in  consideration  thereof,  then  and  there  prom- 
ised the  plaintiff  to  pay  him  the  said  sum  of  money,  on  re- 
quest. Yet  the  defendant,  though  requested,  has  not  paid 
to  the  plaintiff  the  said  sum  of  money,  or  any  part  thereof, 

but  refuses  so  to  do ;  to  the  damage  of  the  plaintiff  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

{^The  common  counts,  etc.,  as  directed  in  JVo.  15,  ante, 
'pcige  81,  may  be  inserted,  in  -which  case  conclude  with  gen- 
eral breach,  as  follows ;) 

Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  said  several  sums  of  money  above  specified,  or 
any  or  either  of  them,  or  any  part  thereof,  but  refuses  so  to 
do  ;  to  the  damage  of  the  plaintiff  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

No.  30.     Payee  of  a  check  against  drawer. 

{Commence  as  in  No.  15,  ante,  ;page  81.)  For  that 
whereas  the  defendant,  on,  etc.,  in  the  county  aforesaid, 
made  his  order  in  writing,  commonly  called  a  check  on  a 
banker,  and  directed  the  same  to  certain  persons  by  the 
name  and  style  of  Messrs.  E.  F.  and  G.  H.,  and  thereby 
required  the  said  Messrs.  E.  F.  and  G.  H.  to  pay  to  the 

plaintiff,  or  bearer,  the  sum  of dollars,  and  then  and 

there  delivered  the  said  order  to  the.  plaintiff :  And  the 
plaintiff  avers,  that  on  the  day  aforesaid  the  said  order  was 
there  presented  to  the  said  Messrs.  E.  F.  and  G.  H.  for 
payment  thereof,  and  they  were  then  and  there  requested 
to  pay  the  said  sum  of  money,  according  to  the  tenor  and 
effect  of  the  said  order;  but  that  the  said  Messrs.  E.  F. 
and  G.  H.  did  not  nor  would  then,  or  at  any  other  time, 
pay  the  said  sum  of  money,  or  any  part  thereof,  but  refused 
so  to  do  ;  whereof  the  defendant  then  and  there  had  notice  : 
By  means  whereof  the  defendant  then  and  there  became 
liable  to  pay  to  the  plaintiff,  on  request,  the  said  sum  of 
money ;  and  being  so  liable,  the  defendant,  in  considera- 


ASSUMPSIT.  105 


Declarations  on  inland  bills  of  exchange. 


tion  thereof,  then  and  there  promised  the  plaintiff  to  pay 
him  the  said  sum  of  money,  on  request. 

{The  common  coitnls,  etc.,  may  be  added,  as  directed  in 
last  precedent. ^ 


DECLARATIONS    ON    INLAND    BILLS   OF  EXCHANGE. 

No.   31.     Drazver  against  acceptor,   on   a  bill  accepted 

generally . 

{Commence  as  in  JVo.  15,  ante,  page  Si.)      For  that 

whereas  the  plaintiff  {by  the  name  and  style  of ) 

on,  etc.,  in  the  county  aforesaid,  made  his  bill  of  exchange, 

and  directed  the  same  to  the  defendant, (5/_y//;;^  him 

-,)  and  thereby  then  and  there  requested  the  defendant 


to  pay, after  the  date  thereof,  to  the  plaintiff,  or 

his  order,  the  sum  of dollars,  for  value  received,  zvith 

interest  thereon,  from  the  date  of  the  said  bill,  at  the  rate 
of per  centum  per  annum  ;  which  said  bill  the  defend- 
ant {by  the  said  name  and  style  of ,)   on  the  day 

first  aforesaid,  upon  sight  thereof,  there  accepted :  By 
means  whereof  the  defendant  then  and  there  became  liable 
to  pay  to  the  plaintiff  the  said  sum  of  money,  according  to 
the  tenor  and  effect  of  the  said  bill  and  of  the  said  accept- 
ance thereof;  and  being  so  liable,  the  defendant,  in  con- 
sideration thereof,  then  and  there  promised  the  plaintiff  to 
pay  him  the  said  sum  of  money,  according  to  the  tenor  and 
effect  of  the  said  bill  and  of  the  acceptance  thereof  afore- 
said. 

{Add  common  counts,  etc.,  and  breach,  as  in  JVo.  15, 
ante,  page  81,  using  the  word  bill.,  instead  of  notb,  in  the 
breach.^ 

If  the  bill  is  payable  so  many  days  after  sight,  describe 
it  accordingly.  In  that  case  the  words  in  the  breach, 
"although  the  day  of  payment  in  the  said  bill  specified 
has  elapsed,"  are  unnecessary. 

Though  usual  to  state  the  address  of  the  bill — that  the 
drawer  "directed  the  same  to  the  said,"  etc. — it  seems  it  is 
unnecessary  to  do  so.  It  is,  however,  sometimes  conve- 
nient, for  the  purpose  of  alleging  the  name  by  which  the 
drawee  is  styled  in  the  bill,  if  he  is  misdescribed  therein. 


io6  ASSUMPSIT. 


Declarations  on  inland  bills  of  exchange. 


If  the  bill  is  not  addressed  to  the  drawee,  this  statement 
should  be  omitted. 

If  the  acceptance  is  dated  on  a  day  different  from  the 
date  of  the  bill,  it  should  be  so  described. 

An  acceptance  by  an  agent  may  be  described  as  made 
by  the  party  himself.  (</) 

The  pleader  should  observe  that  the  precedents  given 
are  framed  upon  bills  as  usually  drawn  ;  but  as  bills  vary  in 
tenor,  care  should  be  taken  not  to  follow  the  forms  too 
closely,  for  fear  of  a  variance.  The  precedents  given  of 
declarations  on  promissory  notes  will  be  useful  to  the 
pleader  in  framing  declarations  on  bills  of  exchange  ;  and 
for  declarations  by  and  against  particular  persons,  he  is  re- 
ferred to  those  precedents. 

No.   32.     Drawer  against   accefior^   on   his   acceptance^ 
varying  as  to  time  from  bill. 

(^Commence  as  in  JVo.  15,  ante,  page^i  ;  and  after  stat- 
ing the  bill,  as  in  last  -precedent,  -payable  in  thirty  days, 
for  instance,  proceed  as  follows:)  which  said  bill  the  de- 
fendant, on  the  d.2iy  Jirst  aforesaid,  upon  sight  thereof,  there 
accepted,  payable  ninety  days  after  the  date  of  the  said  bill  : 
By  means  whereof  the  defendant,  on  the  day  frst  aforesaid, 
there  became  liable  to  pay  to  the  plaintiff  the  amount  of 
the  said  bill,  according  to  the  tenor  and  effect  of  the  said 
acceptance  thereof;  and  being  so  liable,  the  defendant,  in 
consideration  thereof,  then  and  there  promised  the  plaintiff 
to  pay  him  the  said  amount,  according  to  the  tenor  and 
effect  of  the  acceptance  aforesaid. 

i^Add  the  common  counts,  etc.,  as  in  JVo.  15,  ante,  page 
81.      The  breach  will  be  as  follows  :^ 

Yet  although  the  day  of  payment  in  the  said  acceptance 
specified  has  elapsed,  the  defendant  has  not  paid  to  the 
plaintiff  the  amount  of  the  said  bill,  or  any  part  thereof, 
but  refuses  so  to  do ;  nor  has  the  said  defendant,  though 
requested,  paid  to  the  plaintiff  the  several  other  sums  of 
money  above  specified,  or  any  or  either  of  them,  or  any 
part  thereof,  but  refuses  to  pay  the  same  :  to  the  damage  of 


iq) 


Camp.  604;  Chit,  on  Bills,  6  ed.  357. 


ASSUMPSIT.  107 


Declarations  on  inland  bills  of  exchans^e. 


the  plaintiff'  of dollars,  and  therefore  he  brings    his 

suit,  etc. 

No.  33.  Drawer  against  acceptor.,  on  a  bill  payable  to 
a  third  ■person,  and  returned  to  and  taken  up  by 
drawer. 

(^Commence  as  in  No.  15,  ante,  page  81.)  For  that 
whereas  the  plaintiffs,  on,  etc.,  in  the  county  aforesaid, 
made  their  bill  of  exchange,  and  delivered  the  same  to 
Messrs.  J.  A.  &  Co.,  and  thereby  then  and  there  requested 

the  defendants  to  pay, after  the  date  thereof,  to 

the  said  Messrs.  J.  A.  &  Co.,  or  their  order,  the  sum  of 
dollars,  for  value  received ;  which  said  bill  the  de- 
fendants, on  the  day  Jirst  aforesaid,  upon  sight  thereof, 
there  accepted  :  And  the  plaintiffs  aver,  that  when  the 
said  bill  became  due,  to  wit,  on,  etc.,  the  same  was  there 
presented  to  the  defendants  for  payment  thereof,  and  they 
were  then  and  there  requested  to  pay  the  said  sum  of 
money,  according  to  the  tenor  and  effect  of  the  said  bill, 
and  of  their  acceptance  thereof  aforesaid  ;  but  that  the  de- 
fendants did  not  nor  would  then,  or  at  any  time  before  or 
afterwards,  pay  the  amount  of  the  said  bill,  or  any  part 
thereof,  but  refused  so  to  do  ;  and  thereupon  the  said  bill 
was  then  and  there  returned  to  the  plaintiffs  for  non-pay- 
ment thereof,  and  they  w^ere  called  upon  and  obliged  to 
pay,  and  did  then  and  there  pay,  the  amount  of  the  said 
bill  to  the  said  Messrs.  J.  A.  &  Co.,  whereof  the  defend- 
ants then  and  there  had  notice  :  By  means  whereof  the 
defendants  then  and  there  became  liable  to  pay  to  the 
plaintiffs,  on  request,  the  amount  of  the  said  bill ;  and  being 
so  liable,  the  defendants,  in  consideration  thereof,  then  and 
there  promised  the  plaintiffs  to  pay  them  the  said  amount, 
on  request. 

(y Add  the  common  eounts,  etc.,  as  in.  No.  15,  ante,  page 
Sr.      The  brcaeh  will  be  as  follows  :^ 

Yet  the  defendants,  though  requested,  have  not  paid  to 
the  plaintiffs  the  amount  of  the  said  bill,  or  any  part  there- 
of, or  the  several  other  sums  of  mone}'  above  specilied,  or 
any  or  either  of  them,  or  any  part  thereof,  but  refuse  so  to 

do  ;  to  the  damage  of  the   plaintiffs  of  dollars,  and 

therefore  they  bring  their  suit,  etc. 

If  the  plaintitT  has  been  compelled  to  pay  to  any  other 


io8  ASSUMPSIT. 


Declarations  on  inland  bills  of  exchange. 


holder  than  the  payee  of  the  bill,  the  fact  of  payment  should 
be  averred  accordingly. 

The  averment  of  presentment  to  the  defendant,  he  being 
the  acceptor,  may  perhaps  not  be  strictly  necessary,  (r)  and 
should  not  be  made  unless  it  can  be  proved.  It  is  certainly 
necessary  to  show  that  the  defendant  did  not  pay  the  bill, 
and  that  it  was  returned  to  the  plaintiff,  as  the  latter  has  no 
title  to  it  except  by  virtue  of  those  facts.  (5) 

It  is  not  necessary  to  state  the  names  of  partners  who  are 
parties  to  a  bill  of  exchange  or  promissory  note,  unless 
they  are  plaintiffs  or  defendants.  Thus  a  bill  or  note  may 
be  alleged  to  have  been  made  by  "certain  persons  using 
the  style  and  firm  of  John  Smith  &  Co.,"  or  to  have  been 
payable  to  "certain  persons  by  the  name  and  style  of 
William  Jones  &  Co."  (or,  it  seems,  simply  by  "John 
Smith  &  Co.,"  or  to  "Wilham  Jones  &  Co.")  ;  and  there- 
after the  makers,  etc.,  may  be  described  throughout  as 
"the  said  drawers  of  the  said  bill," or  "payees,"  etc.,  as 
the  case  may  be.  (/) 


X^o.  34.     Payee  against  acccftor,   on  bill  accepted  gen- 
erally. 

{Commence  as  hi  No.  15,  ante,  fage  85.)  For  that 
whereas  orte  E.  F.,  on,  etc.,  in  the  county  aforesaid,  made 
his  bill  of  exchange,  and  delivered  the  same  to  the  plaintiff, 
and  thereby  then  and  there  requested  the  defendant  to  pay, 

after  the   date  thereof,  to  the  plaintiff,  or  his 

order,  the  sum  of ■  dollars,  for  value  received  ;  which 

said  bill  the  defendant,  on  the  day  first  aforesaid,  upon 
sight  thereof,  there  accepted :  By  means  whereof  the  de- 
fendant then  and  there  became  liable  to  pay  to  the  plaintiff 
the  said  sum  of  money,  according  to  the  tenor  and  effect  of 
the  said  bill  and  of  the  said  acceptance  thereof;  and  being 
so  liable,  the  defendant,  in  consideration  thereof,  then  and 

{r)   II  Wheat.  171;  4  Johns.  183. 
\s)  I  Swan's  Pr.  240,  n.  k ;  2  Chit.  PI.  147,  n.  a. 

\t>,  2  Chit.  PI.  150;  I  Swan's  Pr.  241,  note;  i  Caines,  192;  3  Wend,  229; 
Bayley  on  Bills,  264;  10  Ohio,  184- 


ASSUMPSIT.  109 


Declarations  on  inland  bills  of  exchansre. 


there  promised  the  plaintift'  to  pay  him  the  said  sum  of 
money,  according  to  the  tenor  and  effect  of  the  said  bill 
and  of  the  acceptance  thereof  aforesaid. 

(Add  the  money  cottnts,  etc.,  as  in  No.  18,  ante,  _^«o-£' 
85,  using  the  word  bill,  instead  of  note,  i^i  the  breach,^ 

IVo.  35.     First,  or  subseqtient,  indorsee  against  acceptor 

(Comniencc  as  in  No.  15,  ante,  "page  85.)  For  that 
whereas  one  E.  F.,  on,  etc.,  in,  etc.,  made  his  bill  of  ex- 
change, and  delivered  the  same  to  one  G.  H.,  and  thereby 

then  and  there  requested  the  defendant  to  pa}', 

after  the  date  thereof,  to  the  said  G.  H.,  or  his  order,  the 

sum  of dollars,  for  value  received  ;  which  said  bill 

the  defendant,  on  the  day  Jirst  aforesaid,  upon  sight  thereof, 
there  accepted ;  and  thereupon  the  said  G.  H.  then  and 
there  indorsed  and  delivered  the  said  bill  to  one  y.  K. ,  who 
thereupon  then  and  there  indorsed  and  delivered  the  same 
to  the  plaintiff:  By  means  whereof  the  defendant  then  and 
there  became  liable  to  pay  to  the  plaintiff  the  said  sum  of 
money,  according  to  the  tenor  and  effect  of  the  said  bill 
and  of  the  said  acceptance  thereof;  and  being  so  liable,  the 
defendant,  in  consideration  thereof,  then  and  there  prom- 
ised the  plaintiff  to  pay  him  the  said  sum  of  money,  accord- 
ing to  the  tenor  and  effect  of  the  said  bill  and  of  the  ac-' 
ceptance  thereof  aforesaid. 

(Add  the  money  counts,  etc.,  as  in  No.  18,  ante,  page  85, 
using  the  ivord  Uill,  instead  of  note,  in  the  breach.^ 


No.  36.     Payee  against  drawer  of  bill,  on    default  of 

acceptance. 

(^Commence  as  in  No.  15,  ante,  page  81.)  For  that 
whereas  the  defendant,  on,  etc.,  in  the  county  aforesaid, 
made  his  bill  of  exchange,  and  delivered  the  same  to 
the   plaintiff,  and   thereby  then   and  there  requested  one 

E.    F.   to   pay, after  the   date  thereof,   to    the 

plaintiff,  or  his  order,  the  sum  of dollars,  for  value 

received:  And  the  plaintiff  avers,  that  on,  etc.,  the  said 
bill  was  there  presented  to  the  said  E.  F.,  for  his  accept- 
ance thereof,  and  he  was  then  and  there  requested  to  ac- 
cept the  same  ;  but  that  the  said  E.  F.  did  not  nor  would 
then,  or  at  any  time  afterwards,  accept  the  said  bill,  or  pay 


no  ASSUMPSIT. 


Declarations  on  inland  bills  of  exchange. 


the  amount  of  the  same,  or  any  part  thereof,  but  refused  so 
to  do  ;  (*)  of  which  premises  the  defendant  then  and  there 
had  notice  :  By  means  whereof  the  defendant  then  and 
there  became  liable  to  pay  to  the  plaintiff,  on  request,  the 
amount  of  the  said  bill ;  and  being  so  liable,  the  defendant, 
in  consideration  thereof,  then  and  there  promised  the  plaint- 
ifl  to  pay  him  the  said  amount,  on  request. 

{If  the  drawer  had  no  effects  in  the  hands  of  the  drawee, 
and  notiee  of  non-aceeptqnce  can  not  be  -proved,  add  a 
count  like  the  next  form,  and  also  add  counts  on  the  con- 
sideration of  the  bill,  and  the  money  counts,  etc.,  as  di- 
rected in  No  15,  ante,  -page  81.  The  breach  will  be  as 
follows:^ 

Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  amount  of  the  said  bills,  or  either  of  them,  or 
any  part  thereof,  or  the  several  other  sums  of  money  above 
specified,  or  any  or  either  or  any  part  of  the  same,  but  re- 
fuses so  to  do ;  to  the  damage  of  the  plaintiff  of dol- 
lars, and  therefore  he  brings  his  suit,  etc. 

No.  37.     Payee  against  drazver — defendant  had  no  effects 
in  drazver'' s  hands. 

First  count  same  as  last  precedent;  second  co7int  same 
.as  far  as  the  asterisk,  and  then  proceed  as  follows:)  And 
the  plaintiff  avers,  that  at  the  time  of  the  making  of  the  last- 
mentioned  bill,  and  from  thence  until  and  at  the  time  when 
the  same  was  so  "presented  to  the  said  E.  F.  for  his  accept- 
ance thereof,  as  aforesaid,  he  the  said  E.  F.  had  not  in  his 
hands  any  effects  of  the  defendant,  nor  had  he  the  said  E. 
F.  received  any  consideration  from  the  defendant  for  the 
acceptance  or  payment  by  him  the  said  E.  F.  of  the  last- 
mentioned  bill,  nor  has  the  defendant  sustained  any  damage 
by  reason  of  his  not  having  had  notice  of  the  non-accept- 
ance of  the  same  by  the  said  E.  F. ;  of  which  premises  the 
defendant,  on  the  day  last  aforesaid,  there  had  notice  :  By 
means  whereof,  etc. 

{State  liability,  and  promise  to  pay  on  request,  as  in 
last  precedent.) 

No.  38.     Payee  against  drazver,  on  default  of  payment. 

{Commence  as  in  No.  15,  ante,  page  81.)  For  that 
whereas  the   defendant,  on,  etc.,. in  the  county  aforesaid, 


ASSUMPSIT.  Ill 


Declarations  on  inland  bills  of  exchancre. 


made  his  bill  of  exchange,  and  delivered  the  same  to  the 
plaintiff,  and  thereby  then  and  there  requested  one  E.  F.  to 

pay, after  the  date  thereof,  to  the  plaintiff,  or  his 

order,  the  sum  of  dollars,  for  value  received ;  which 

said  bill  the  said  E.  P.,  on  the  day  ^;'5/  aforesaid,  upon 
sight  thereof,  there  accepted  :  And  the  plaintiff  avers,  that 
when  the  said  bill  became  due,  to  wit,  on,  etc.,  the  same 
was  there  presented  to  the  said  E.  F.  for  payment  thereof, 
and  he  was  then  and  there  requested  to  pay  the  said  sum 
of  money,  according  to  the  tenor  and  effect  of  the  bill ;  but 
that  the  said  E.  F.  did  not  nor  would  then,  or  at  any  time 
before  or  afterwards,  pay  the  amount  of  the  said  bill,  or  any 
part  thereof,  but  refused  so  to  do :  of  which  premises  the 
defendant  then  and  there  had  notice  :  By  means,  etc. 

{State  defendant'' s  liability,  and  -promise  to  pay  the 
ainotmt  of  the  bill  on  request.  If  doubtful  zvhether  due 
notice  to  defendant  of  non-fayincnt  can  be  proved,  and  he 
had  no  effects  in  hands  of  drawee,  insert  a  count  like  the 
last  precedent,  JVo.  37,  averring  that  "at  the  time  of  the 
making  of  the  last-mentioned  bill,  and  from  thence  until 
and  at  the  time  when  the  same  was  so  presented  to  the  said 
E.  F.  for  payment  thereof,"  the  defendant  had  no  effects, 
etc.;  and  add  common  counts,  etc.,  and  breach,  as  sug- 
gested in  No.  36.) 


Other  counts  may  be  inserted,  according  to  the  circum- 
stances, viz  :  a  count  alleging  that  the  defendant  dispensed 
with  presentment  for  payment ;  a  count  alleging  that  the 
drawee  could  not  be  found  ;  (t^)  and  one  averring  that  the 
drawee  was  dead,  (w) 

It  seems  that  the  averment  of  acceptance  in  the  above 
precedent,  though  usual,  is  unnecessary,  and  should  be 
omitted  if  there  is  any  doubt  as  to  the  proof  of  the  accept- 
ance. (//.) 

Where  sufficient  notice  to  the  drawer  of  non-pavment  is 
not  proved,  the  bill  may  still  be  admitted,  and  authorize  a 
recovery,  under  the  common  money  counts,  if  the  evidence 


{v)  2  Chit.  PI.  160;  I  Swan's  Pr.  247,  248. 

(w)  I  Swan's  Pr.  24S. 

{u)  2  Chit.  PI.  15S;  I  Swan's  Pr.  243. 


ri2  ASSUMPSIT. 


On  warranties. 


shows  a  waiver  of  notice,  or  that  the  defendant  had  no  funds 
in  the  hands  of  the  drawee,  {x)  or,  it  is  presumed,  if  any 
other  matter  appears,  sufficient  to  excuse  notice. 

The  cases  in  the  Supreme  Court  of  Illinois,  relating  to 
bills  of  exchange,  are  noted  below,  (j) 

ON    WARRANTIES. 

JVo.  39.      On  a  warranty  of  a  horse  to  be  sound. 

(^Commence  as  in  No.  18,  ante,  _^«^^  85.)  For  that 
whereas  on,  etc.,  in  the  county  aforesaid,  in  consideration 
that  the  plaintiff,  at  the  request  of  the  defendant,  would  bu}' 
of  the  defendant  a  certain  horse,  at  a  certain  price,  to  wit, 

the  sum  of dollars,  to  be  therefor  paid  by  the  plaintiff, 

the  defendant  promised  the  plaintiff  that  the  said  horse  then 
was  sound ;  and  thereupon  the  plaintiff,  confiding  in  the 
said  promise  of  the  defendant,  then  and  there  bought  the 
said  horse  of  the  defendant,  and  paid  him  therefor  the  said 
sum  of  money.  Yet  the  defendant  did  not  regard  his  said 
promise,  but  thereby  deceived  and  defrauded  the  plaintiff, 
in  this,  to  wit,  that  the  said  horse,  at  the  time  of  the  making 
of  the  said  promise  of  the  defendant,  was  not  sound,  but  on 
the  contrary  thereof  was  at  that  time  unsound ;  whereby 
the  said  horse  there  became  and  was  of  no  value  to  the 
plaintiff,  and  the  plaintiff  has  there  been  put  to  great 
charges  and  expenses,  amounting  to  a  large  sum,  to  wit, 

—. dollars,  in  and  about  the  feeding,  keeping,  and  taking 

care  of  the  said  horse. 

{If  only  a  part  of  the  -price  was  paid^  aver  that  the 

plaintiff '■''■p?ad  him  therefor  the  sum  of dollars,  part 

of  the  said  price,  and  then  and  there  promised  the  defend- 
ant to  pay  him  the  residue  thereof  on  request,"  or  "three 
months  after  that  date,"  as  the  case  may  be.) 

(Second  count.)  And  for  that  whereas  also,  on  the  day 
aforesaid,  in  the  county  aforesaid,  in  consideration  that  the 


ASSUMPSIT.  113 


On  warranties. 


plaintiff,  at  the  request  of  the  defendant,  had  then  and  there 
bought  of  the  defendant  a  certain  other  horse,  at  a  certain 

other  price,  to  wit,  the  sum  of dollars,  and  had  then 

and  there  faid  that  sum  to  the  defendant  for  the  last-men- 
tioned horse,  the  defendant  promised  the  plaintiff  that  the 
last-mentioned  horse,  at  the  time  of  the  said  sale  thereof, 
was  sound.  Yet  the  defendant  did  not  regard  his  last- 
mentioned  promise,  but  thereby  deceived  and  defrauded 
the  plaintiti',  in  this,  to  wit,  that  the  last-mentioned  horse, 
at  the  time  of  the  said  sale  thereof,  was  not  sound,  but  on 
the  contrary  thereof  was  then  unsound ;  whereby  the  same 
horse  there  became  and  was  of  no  use  or  value,  etc.,  etc. 
(as  in  the  first  coicnt.) 

(A  third  count  may  be  added,  like  the  second,  omitting 
the  words  in  italics;  and  add  a  count  for  horse-keep,  if 
there  was  any  contract  to  that  effect,  and  the  money  counts; 
an-d  conclude  as  follows : ) 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has 

sustained  damag-e  to  the  amount  of dollars,  and  there- 

fore  he  brings  his  suit,  etc. 

The  particular  description  of  unsoundness  is  not  required 
to  be  stated,  it  being  a  rule  in  pleading  that  the  breach  may 
in  Gfeneral  be  assigned  in  the  negative  of  the  words  of  the 
contract,  (z) 

The  above  forms  may  be  readily  adapted  to  any  case  of 
warranty  of  a  horse,  as  a  warranty  that  the  animal  was 
"free  from  vice,"  or  was  "  sound,  kind,  and  would  go  well 
in  single  or  double  harness,"  etc.  The  warranty  must  be 
described  accurately,  and  must  be  co-extensive  with  the 
breach,  {a) 

No.  40.      On  tvarranty  of  hops  sold  by  sample. 

{Commence  as  in  No.  i,  ante,  page  So.)  For  that 
whereas   on,  etc.,  in  the  county  aforesaid,  in  consideration 

(?)  Com.  Dig.  PI.  C.  45;  2  Saund.    iSi,  b;  3  T.  R    307;  9  Co.  60,  b; 
I  Chit.  PI.  291. 
C«)  2  Ciiit.  PI.  281,  note/. 


114  ASSUMPSIT. 


On  warranties. 


that  the  plaintiff  would  buy  of  the  defendant,  at  his  re- 
quest, five  pockets  of  hops,  at  a  certain  price,  to  wit. 


dollars,  the  defendant  promised  the  plaintiff  to  deliver  to 
him  the  said  five  pockets  of  hops,  and  that  the  hops  con- 
tained in  the  said  five  pockets,  respectively,  should  all  be 
of  like  goodness  and  quality  with  certain  samples  thereof, 
then  and  there  shown  by  the  defendant  to  the  plaintiff,  that 
is  to  say,  a  sample  of  the  contents  of  each  of  the  said  five 
pockets  :  And  the  plaintiff"  avers,  that  thereupon  he,  con- 
fiding in  the  said  promise,  then  and  there  bought  of  the  de- 
fendant the  said  five  pockets  of  hops,  at  the  price  aforesaid  ; 
and  the  defendant  afterwards,  to  wit,  on,  etc.,  there  de- 
livered to  the  plaintiff  five  pockets  of  hops,  as  and  for  hops 
of  like  goodness  and  quality  with  the  respective  samples  so 
as  aforesaid  shown  to  the  plaintiff.  Yet  the  defendant  did 
not  regard  his  said  promise,  but  thereby  deceived  and  de- 
frauded the  plaintiff'  in  this,  to  wit,  that  the  hops  contained 
in  the  five  pockets,  respectively,  so  as  aforesaid  delivered 
to  the  plaintiff,  at  the  time  of  the  said  delivery  thereof, 
were  not  all  of  like  goodness  and  quality  with  the  respective 
samples  atbresaid,  but  on  the  contrary  thereof  the  hops 
contained  in  each  and  every  one  of  those  five  pockets  were 
then  all  of  greatly  inferior  goodness  and  quality  to  the  re- 
spective samples  so  as  aforesaid  shown  to  the  plaintiff",  and 
were  bad,  damaged,  and  unsalable  ;  whereby  the  plaintiff 
lost  the  benefit  of  selling  the  same,  etc.,  and  gaining  large 
profits,  etc. 

instate  any  special  damage  there  may  have  been,  as 
freight  paid,  insurance,  etc.) 

{Second  count.  Hops  sold  as  good,  etc.)  And  for  that 
whereas  also,  on  the  day  first  aforesaid,  in  the  county  afore- 
said, in  consideration  that  the  plaintiff  would  buy  of  the  de- 
fendant,  at  his   request,  five   other  pockets  of  hops,  at  a 

certain  .price,  to  wit, dollars,  the  defendant  promised  the 

plaintiff"  to  deliver  to  him  the  last-mentioned  hops,  and  that 
the  same  should  be  good,  sound  and  merchantable  hops  : 
And  the  plaintiff  avers  that  thereupon  he,  confiding  in  that 
promise,  then  and  there  bought  of  the  defendant  the  last- 
mentioned  hops,  at  the  price  aforesaid  ;  and  the  defendant 
afterwards,  to  wit,  on,  etc.,  there  delivered  to  the  plaintiff' 
five  pockets  of  hops,  as  and  for  good,  sound  and  mer- 
chantable hops.  Yet  the  defendant  did  not  regard  his 
promise  last  aforesaid,  but  thereby  deceived  and  defrauded 
the  plaintiff",  in  this,  to  wit,  that  the  last-mentioned  hops,  at 


ASSUMPSIT.  115 


On  warranties. 


the  time  of  the  said  delivery  thereof  to  the  plaintiff,  were 
not  good,  sound  and  merchantable  hops,  but  on  the  con- 
trary thereof  were  then  and  there  bad,  damaged  and  un- 
merchantable ;  whereby  the  plaintiff  lost  the  benefit  of  sell- 
ing the  same,  etc.  (as  in  first  count.) 

(Add  the  money  counts^  and  conclude  as  in  last  -pi-ece- 
dent,  No.  39.) 

In  the  case  from  which  the  above  precedent  is  drawn,  {h) 
it  was  decided  that  when  there  is  a  latent  defect  in  a  com- 
modity, unknown  to  the  seller,  and  he  sells  with  warranty 
of  goodness  equal  to  a  sample,  he  is  not  liable  on  such 
warranty  for  any  damage  resulting  from  such  latent  de- 
fect; nor  will  the  law  raise  an  implied  promise,  in  such 
case,  that  the  commodity  is  sound  and  merchantable, 
though  a  fair  price  was  given  for  the  same  ;  since  no  fraud 
is  imputable  to  the  seller.  In  order  to  bind  the  seller,  there 
should  be  an  ex-press  warranty  of  the  soundness. 

It  would  seem  preferable,  in  a  count  like  the  first  in  the 
above  precedent,  to  allege  that  the  defendant  promised  the 
plaintiff  that  the  merchandise  "should  be  of  like  goodness 
and  quality  with  a  certain  sample  then  and  there  shown  by 
the  defendant  to  the  plaintiff  as  and  for  a  sample  of"  the 
merchandise  sold. 

The  principal  Illinois  cases  on  the  subject  of  warranty 
are  noted  below,   (c) 

(*)  -East,  314. 

(c)  2  Scam.  22;  4  Scam.  4S6;  4  Gilm.  69;  5Gilm.  36;  11  111.  35;  15 
111.345;  16  111. 69;  iS  111.  420;  19III.  565;  20111.285;  21  111.  rSo;  22  III 
288,446;  24  111.  117,  455;  27  111.  3S2;  28  111.  280;  31  111.  107;  32  111.  220, 
252;  36111.81;  39  111.  195,585;  41  111.  207,  295;  45  111.  496;  48  III.  75;  49 
111.  88;  51  111.  225;  52  111.  486;  53  111.  245. 


ii6  ASSUMPSIT. 


By  landlord  against  tenant. 


BY    LANDLORD    AGAINST    TENANT. 

No.  41.  Landlo7-d  against  tenant  from  year  to  year ^  on 
implied  contract  to  iise  farm  in  husbandlike  manner ^ 
and  according  to  custom  of  country. 

{^Commence  as  in  JVo.  14,  ante,  ;page  80.)  For  that 
whereas  the  defendant,  on,  etc.,  in  the  county  aforesaid, 
was  tenant  to  the  plaintiff  of  a  certain  farm  there  situate, 
and  in  consideration  thereof  the  defendant  then  and  there 
promised  the  plaintiff'  to  manage,  use  and  cultivate  the  said 
farm,  during  the  said  tenancy,  in  a  good  and  husbandlike 
manner,  and  according  to  the  custom  of  the  country  where 
the  said  farm  is  so  situate  :  And  the  plaintiff  avers  that  the 
defendant  there  continued  tenant  to  the  plaintiff  of  the  said 
farm,  from  the  time  of  the  making  of  his  said  promise  until 

the  day  of  ,  in  the  year  18 —  {or   "hitherto"). 

Yet  the  defendant  did  not  nor  would,  during  the  said  ten- 
ancy, manage,  use  or  cultivate  the  said  farm  in  a  good  and 
husbandlike  manner,  and  according  to  the  custom  of  the 
country  where  the  same  is  so  situate  ;  but  on  the  contrary 
thereol',  after  the  making  of  the  said  promise,  and  during 
the  said  tenancy,  to  wit,  in  the  year  18 —  {or  "in  the  suc- 
cessive years  18 —  and  18 — "),  there  wrongfully  {here  state 
any  act  or  omission  complained  of)  ;  contrary  to  the  course 
of  good  husbandry  and  the  custom  of  the  country  where  the 
said  farm  is  situate  as  aforesaid,  and  contrary  to  the  said 
promise  of  the  defendant. 

{Second  breach.)  And  the  plaintiff  further  says,  that 
the  defendant,  after  the  making  of  his  said  promise,  and 
during  the  said  tenancy,  did  not  nor  would  [here  state  any 
other  omission),  as  the  defendant,  according  to  the  course 
of  good  husbandry,  ought  to  have  done  ;  but  on  the  con- 
trary thereof,  the  defendant 'during  that  time,  to  wit,  on  the 
day  first  atoresaid,  and  at  divers  other  times  between  that 

day  and  the  — —  day  of aforesaid,  there  wrongfully 

{here  state  the  act  done  in  place  0/ the  act  tvhich  ought  to 
have  been  done;)  contrary  to  the  course  of  good  husbandry 
and  the  custom  of  the  said  country,  and  contrary  to  the  said 
promise  of  the  defendant. 

{It  may,  in  some  cases,  be  advisable  to  add  a  second 
count,  similar  to  the  first,  but  leaving  out  what  relates 
to  the  custom  of  the  country;  and  also  to  insert  a  third 
count,  stating  the  promise  as  in  the  first,  and  a  general 


ASSUMPSIT.  117 


By  landlord  against  tenant. 


breach  of  good  husbandry  ^  without  stating  the  -particulars. 
Any  special  damage  is  of  course  to  be  averred',  and  if 
the  plaintiff  has  been  forced  to  expend  money,  add  counts 
for  money  paid,  etc.      Conclude  as  in  JVo,  39,  ante.) 

JSfo.  42.    Against  tenant  for  keeping  and  leaving  premises 
out  of  repair. 

Commence  as  in  No  14,  ante,  page  80.)  For  that 
whereas  on,  etc.,  in,  etc.,  in  consideration  that  the  plaint- 
iff, at  the  request  of  the  defendant,  would  let  to  the  de- 
fendant a  certain  messuage,  with  the  appurtenances,  there 
situate,   to    hold    the    same    to    the    defendant,  as  tenant 

thereof  to  the  plaintiff,  to  wit,  from  the  •  day  of 

then  next,  for  one  whole  year,  and  so  from  year  to  year,  s- ■ 
long  as  the  plaintiff  and  the  defendant  should  respectively 
please,  the  defendant  promised  the  plaintiff  that  he,  the 
defendant,  would,  during  the  continuance  of  such  tenancy, 
keep  the  said  messuage,  with  the  appurtenances,  in  tenant- 
able  repair,  order  and  condition  :  And  the  plaintiff  avers 
that  thereupon  he,  confiding  in  the  said  promise  of  the 
defendant,  on  the  day  first  aforesaid,  there  let  the  said  mes- 
suage, with  the  appurtenances,  to  the  defendant,  for  the 
time  and  upon  the  terms  aforesaid,  and  that  the  defendant 
was  tenant  to  the  plaintiff  of  the  said  messuage,  with  the 
appurtenances,  under  and  by  virtue  of  the  said  letting, 
from  the  time  of  making  his  promise  aforesaid  until  and 

upon  the day  of,  etc.     Yet  the  defendant  did  not  nor 

would,  during  the  continuance  of  the  said  tenancy,  keep  the 
said  messuage,  with  the  appurtenances,  in  tenantable  re- 
pair, order  and  condition  ;  but  on  the  contrary  thereof,  the 
defendant,  during  the  continuance  of  his  said  tenancy,  to 
wit,  on  the  day  first  above  mentioned,  and  from  thence 
until  and  upon  the  said,  etc.,  wrongfully  suffered  the  said 
messuage,  with  the  appurtenances,  to  be,  and  the  same 
were,  during  all  that  time,  ruinous,  prostrate,  foul  and  in 
untenantable  repair,  order  and  condition,  for  want  of  need- 
ful repairing,  cleansing  and  amending  thereof;  and  011 
day  last  aforesaid  the  defendant  there  delivered  up  to  the 
plaintiff  the  said  premises,  so  ruinous,  prostrate,  broken 
down,  foul  and  in  bad  and  untenantable  order,  repair  and 
condition  as  aforesaid,  contrary  to  the  said  promise  of  the 
defendant. 


ii8  ASSUMPSIT. 


On  promises  to  marrj. 


ON    PROMISES    TO    MARRY. 

No.  43.      On  ■promise  to  marry  on  request. 

,  iyCommence  as  in  Ko.  14,  ante,  page  80.)  For  that 
whereas  on,  etc.,  in  etc.,  in  consideration  that  the  plaintiff, 
being  then  unmarried,  had  then  and  there  promised  the  de- 
fendant, at  his  request,  to  many  him,  when  she,  the  plaintil!', 
should  be  thereto  requested,  the  defendant  promised  the 
plaintiff  to  marry  her,  when  he  should  be  thereto  requested : 
And  the  plaintiff  avers  that  she,  confiding  in  the  said 
promise  of  the  defendant,  has  always  from  thence  hitherto 
remained  and  still  is  unmarried,  and  has  been  for  all  the 
time  aforesaid,  and  still  is,  there  ready  and  willing  to  marry 
him.  Yet  although  the  plaintiff,  after  the  making  of  the 
said  promise  of  the  defendant,  to  wit,  on  the  day  aforesaid, 
there  requested  the  defendant  to  marry  her,  the  defendant 
did  not  nor  would  then,  or  at  any  time  before  or  afterwards, 
marry  the  plaintiff,  but  refuses  so  to  do. 

The  above  count  is  for  not  marrying  on  request.  One  or 
all  of  the  following  counts  may  be  added,  according  to  the 
circumstances. 

No.  44.      Count  for  marrying  another  woman. 

For  that  whereas  on,  etc.,  in,  etc.,  in  consideration  that 
the  plaintiff,  being  then  unmarried,  had  then  and  there 
promised  the  defendant,  at  his  request,  to  marry  him,  w^hen 
she,  the  plaintiff,  should  be  thereunto  requested,  the  de- 
fendant promised  the  plaintiff  to  marry  her  on  request: 
And  the  plaintiff  avers  that  she,  confiding  in  the  si>id  prom- 
ise of  tne  defendant,  has  always  from  thence  hitherto  re- 
mained and  still  is  unmarried.  Yet  the  defendanc,  rafter  the 
making  of  his  said  promise,  to  wit,  on ,  there  wrong- 
fully married  a  certain  other  person,  to  wit,  one ,  con- 
trary to  his  last-mentioned  promise. 

No.  45.     Count  on  promise  to  marry  in  a  reizonable  time. 

And  whereas  also  on,  etc.,  in,  etc.,  in  consideration 
that  the  plaintiff'",  being  then  unmarried,  had  then  and  there 
promised  the  defendant,  at  his  request,  to  marry  hun,  the 
defendant  promised  the  plaintiff  to  marry  her  within  h  rea- 


ASSUT^IPSIT.  119 


On  promises  to  marry. 


sonable  time  thereafter  :  And  the  plaintiff  avers,  that  con- 
fiding in  the  last-mentioned  promise  of  the  defendant,  she 
has  always  hitherto  remained  and  still  is  unmarried,  and 
there  has  been,  during  all  the  time  last  aforesaid,  and  still 
is,  ready  and  willing  to  marry  the  defendant,  whereof  he 
has  always  there  had  notice.  Yet  although  a  reasonable 
time  for  the  defendant  to  marry  the  plaintiff"  has  elapsed 
since  the  making  of  the  last-mentioned  promise  of  the  de- 
fendant, and  although  the -plaintiffs  after  the  lapse  of  such 
reasonable  time,  to  zvit^  on,  etc.,  there  requested  the  defend- 
ant to  marry  her,  he  did  not  nor  w^ould,  within  such  reason- 
able time  as  aforesaid,  or  zvhcn  so  requested  as  aforesaid, 
or  at  any  other  time,  marry  the  plaintiff',  but  refuses  so  to 
do.  {It  may  be  advisable  to  insert  a  count  like  this,  leav- 
ing out  the  ivords  in  italics.^ 

j\o.  46.     Count  on  promise  to  marry  at  a  particular  time. 

For  that  whereas  on,  etc.,  in,  etc.,  in  consideration  that 
the  plaintiff',  being  then  unmarried,  had  then  and  there 
promised  the  defendant,  at  his  request,  to  marry  him  in  the 
{latter  part  of  February  nc'tct — state  the  time  according  to 
facts — )  he,  the  defendant,  promised  the  plaintiff' to  marry 
her  in  {the  latter  part  of  February  then  next).  And  the 
plaintiff'  avers  that  she,  confiding  in  the  said  promise,  in 
{the  latter  part  of  February  next)  after  the  making  thereof, 
and  before  and  ever  since,  was  and  has  been  ready  and 
willing  to  marry  the  defendant,  whereof  he  then  and  there 
had  notice.  Yet  the  defendant  did  not  nor  would  in  {the 
said  latter  part  of  February  next)  after  the  making  of  his 
said  promise,  or  at  any  time  before  or  afterwards,  marry  the 
plaintiff'  ;  and  afterwards,  to  wit,  on,  etc.,  he  there  wholly 
declined  and  refused  to  marry  the  plaintiff',  and  wholly 
discharged  her  from  the  performing  of  her  said  promise. 

Where  the  promise  is  special,  as  "  after  the  death  of  the 
defendant's  father,"  it  should  be  so  declared  on,  with  proper 
averments,  {d) 

The  action  on  a  promise  to  marry  is  sustainable  only 
when  the  contract  is  mutual,  [e)     And  though  one  of  the 

yd)  2  Peake,  103;  Chitty,  Jr.,  on  Cont.  426. 

(e)  I  Rol.  Ab,  2215;  I  Sid.  iSo;  1  Lev.  147;  Carth.  467;  2  Ind.  234. 


I20  ASSUMPSIT. 


On  promises  to  marrj. 


parties  is  an  infant,  yet  the  contract  is  binding  on  the  other 
side ;  {/)  and  can  be  sustained  by  a  man  against  a  wo- 
man ;  {g)  but  an  executor  can  not  sue.  (Ji) 

It  is  not  necessary  that  the  time  of  marriage  should  be 
specified  to  make  the  promise  binding.  (/) 

If  the  promise  was  to  marry  on  a  particular  day,  it 
should  be  so  described  in  one  count  of  the  declaration  ;  (/) 
but  for  fear  the  plaintiff  should  not  be  able  to  prove  such 
particular  promise,  it  is  usual  and  better  to  add  a  count  to 
marry  on  request,  another  to  marry  in  a  reasonable  time, 
and  another  to  marry  generally.  (/?^) 

Under  a  count  to  marry  on  request,  positive  proof  of 
such  request  and  refusal  is  never  required.  This  may  be 
inferred  from  circumstances,  and  especially  from  testimony 
showing  a  substantial  refusal  by  the  defendant.  The  re- 
quest need  not  necessarily  be  made  by  the  plaintiff  herself. 
It  may  be  made  by  her  father,  or  other  friend,  whose  au- 
thority to  do  so  may  be  inferred  from  the  relations  existing 
between  the  parties.  (/  ) 

In  an  action  for  a  breach  of  marriage-contract,  seduction 
of  the  plaintiff  by  the  defendant,  under  promise  of  mar- 
riage, may  be  given  in  evidence  in  aggravation  of  dam- 
ages, {m)  The  reason  for  this  rule  of  law  is  manifest.  A 
party  is  always  entitled  to  such  damages  as  are  the  natural 
and  proximate  results  of  the  act  complained  of.  {n)  What- 
ever damages  the  plaintiff  may  have  suffered  in  conse- 
quence of  the  defendant's  refusal  to  marry  her,  she  is  legiti- 
mately entitled  to  recover  in  this  action.    And  these  damages 

(/)  2  Stra.  937;  Bac.  Abr.  Infant;  7  Cow.  22 
{g)  Carth.  467;  I  Salk.  24;  5  Mod.  511. 
(  k)  2  M.  &  S.  40S. 
(/)  Carth.  467. 
{J)  2  Chit.  PI.  321,  note  m. 
(  k)  1  M.  &  P.  239;  2  Chit.  PI.  323 
(/)  32111.312. 

(.»?)  12  111.  446;  3  Mass.  72;  3  Mo.  318;  2  Overton,  233;  2  Blackf.  194;  a 
Ind.  402. 

(w)  2  Greenl.  Ev.  256;  12  111.  446. 


ASSUMPSIT.  121 


On  promises  to  marry. 


are  to  be  estimated  from  the  circumstances  of  the  parties, 
and  the  situation  in  which  the  plaintiff'  is  left  by  the  defend- 
ant's refusal  to  perform  his  contract,  {o) 

The  rules  applicable  to  contracts  of  marriage  do  not 
differ  materially  from  those  governing  contracts  in  general. 
In  both,  the  intention  of  the  parties  must  be  collected  from 
tlie  terms  employed,  whether  the  contract  is  verbal  or  in 
writing,  and  their  rights  and  liabilities  determined  accord- 
ingly. In  the  case  of  mutual  and  dependent  promises, 
neither  can  maintain  an  action  without  first  showing  a  will- 
ingness and  an  offer  to  perform  on  his  part,  or  that  the 
other  party  has  done  some  act  dispensing  with  such 
ofi'er.  (p) 

If  the  declaration  is  upon  a  promise  to  marry  upon  re- 
quest, or  in  a  reasonable  time,  the  plaintiff'  must  aver  and 
prove  a  special  request,  or  an  offer  to  perform  ;  a  bare  alle- 
gation of  readiness  and  willingness  is  not  sufficient,  (y) 

Where  there  is  a  general  promise  to  marry,  the  law  will 
imply  that  it  ts  to  be  performed  within  a  reasonable  time,  (a) 

If  a  man  tells  a  woman's  father  that^  he  does  not  intend 
to  perform  his  matrimonial  engagement  to  his  daughter,  it 
is  sufficient  for  her  to  maintain  her  action,  (r) 

The  promise  to  marry,  or  the  request  or  refusal,  may  be 
proved  by  circumstances.  (5) 

In  an  action  for  a  breach  of  promise  of  marriage,  the 
defendant  may  prove  particular  acts  of  the  plaintiff*,  tending 
to  show  that  she  was  an  unchaste  woman,  if  such  acts  and 
her  character  were  unknown  to  him  until  after  the  making 
of  the  promise,  but  not  otherwise,  U)  except  in  mitiga- 
tion of  damages  ;  {u)  and  to  absolve  the  defendant,  he  must 

(o)  12  111.  446. 

(^)  3  Gilm.  202;  I   Saund.  33;  5  Term,  409;   12  Johns.  203;  5  Cowen, 
404;  13  Wend.  2S5;  5  Hill  (N.  Y.),  37;  i  Chittj.  363;  2  Bibb,  341 
(a)  85  111.  222. 

(g)   I  Littell,  234;  3  Gilm.  212. 
(r)   2  Car.  &  Payne,  631. 
{s)  3  Uilm.  202;  5  Littell,  234;  32  111.  312. 
{t)   18  111.  44. 
(«)   24  III.  264;  2  Bradwell,  236. 


122  ASSUMPSIT. 


Asrainst  bailees. 


have  terminated  the  engagement  immediately  upon  being 
apprised  of  the  facts,  (v) 

It  would  seem  that  very  slight  facts  and  circumstances 
tending  to  prove  misconduct,  may  be  shown  in  mitigation 
of  damages  ;  (w)  but  while  this  is  true,  and  the  defendant 
is  entitled  to  offer,  in  mitigation^  general  rumor  of  bad 
character,  [x)  yet  he  shall  not  bar  the  action  without  proof 
substantiating  the  charges  ;  nor  shall  he  be  allowed  to  prove 
either  general  reputation  or  particular  acts,  if  such  reputa- 
tion or  acts  were-the  result  of  his  own  fault,  {y) 

Contracts  of  marriage  may  be  inferred  from  unusual  and 
marked  attentions  and  continued  intimacy,  and  those  mani- 
festations of  attachment  and  regard  which  usually  precede 
the  consummation  of  such  contracts.  (2^) 

AGAINST    BAILEES. 

No.  47.     Against  hirer  of  horse.,  for  using  it  improperly., 
and  on  a  different  journey,  etc. 

{^Commence  as  in  No.  14,  ante,  -page  80.)  For  that 
whereas  on,  etc.,  in  tlie  county  aforesaid,  in  consideration 
that  the  plaintiff  would  let  to  hire  and  deliver  to  the  de- 
fendant, at  his  request,  a  certain  horse  of  the  plaintiff,  of 
the  value  of  dollars,  for  the  defendant  to  go  and  per- 
form a  certain  journey  therewith,  to  wit,  from,  etc.,  to, 
etc.,  and  from  thence  back  again  to,  etc.,  aforesaid,  for 
certain  reasonable  reward  to  the  plaintiff  in  that  behalf,  the 
defendant  promised  the  plaintiff  that  he,  the  defendant, 
would  not  go  or  perform  with  the  said  horse  any  other 
journev  than  the  one  aforesaid,  and  that  he  would  ride  {or 
"  drive")  and  use  the  said  horse  in  a  moderate,  careful,  and 
proper  manner:  And  the  plaintiff  avers  that  thereupon  he, 
contiding  in  the  said  promise,  then  and  there  let  to  hire  and 

(r;)  24  111.  264. 

(w)  3  Esp.  236;  7  Cow.  22;  4  Esp.  257;  Pea'.Le  Ad.  C,  S.  C.  103,  124; 
I  Car.  &  Payne,  529,  546. 

(a;)   I  Holt  N.  P.  151;  3  Esp.  235. 
(  v)  3  Mass.  189. 
(^r)  3  Gilm.  202. 


ASSUMPSIT.  123 


Asrainst  bailees. 


delivered  the  said  horse  to  the  defendant,  and  the  defend- 
ant then  and  there  hired  and  received  the  same  of  the 
plaintiff,  for  the  purpose  and  upon  the  terms  aforesaid. 
Yet  the  defendant,  not  regarding  his  said  promise,  there- 
upon, on  the  day  aforesaid,  went  and  performed  with  the  said 
horse  another  journey  than  the  one  aforesaid,  that  is  to  say, 
a  certain  journey  from,  etc.,  aforesaid  to,  etc.,  aforesaid, 

and  from  thence  to  a  certain  place  called ,  in  the  county 

of  ,  and  from  thence  back  again  to,  etc.,  aforesaid; 

and  in  going  and  performing  the  last-mentioned  journey, 
the  defendant  so  immoderately,  carelessl}',  and  improperly 
rode  {or  "drove")  and  used  the  said  horse,  that  by  means 
of  the  several  premises  the  said  horse  became  and  was 
greatly  lamed  and  hurt,  and  so  remained  for  a  long  time, 
to  wit,  hitherto,  during  all  which  time  the  plaintiff  was  de- 
pr>ived  of  the  use  and  benetit  of  his  said  horse,  and  also 
thereby  the  said  horse  became  and  was  greatly  damaged 
and  lessened  in  value. 

{The  second  count  is  usually  for  riding  the  horse  im- 
moderately, and  is  as  follows :) 

And  whereas  also  on,  etc.,  in  etc.,  in  consideration  that 
the  plaintiff,  at  the  request  of  the  defendant,  had  let  to  hire 
and  delivered  to  the  defendant  a  certain  other  horse  of  the 
plaintiff,  of  the  value  of ■  dollars,  to  be  by  the  defend- 
ant ridden  and  used,  he,  the  defendant,  promised  the 
plaintiff  to  ride  and  use  the  last-mentioned  horse  in  a  mod- 
erate, careful  and  proper  manner.  And  although  the  de- 
fendant then  and  there  received  the  last-mentioned  horse 
of  the  plaintiff,  for  the  purpose  last  aforesaid,  3^et  the  de- 
fendant, not  regarding  his  last-mentioned  promise,  did  not 
nor  would  ride  or  use  the  last-mentioned  liorse  in  a  mod- 
erate, careful  or  proper  manner;  but  on  the  contrary 
thereof,  the  defendant,  after  the  making  of  his  last-men- 
tioned promise,  to  wit,  on  the  day  aforesaid,  there  so  care- 
lessly and  improperly  rode  and  used  the  last-mentioned 
horse  that  by  means  thereof  the  same  became  and  was 
greatly  lamed  and  hurt,  and  so  remained  for  a  long  space 
of  time,  to  wit,  hitherto,  during  all  which  time  the  plaintiff 
thereby  was  deprived  of  the  use  and  benefit  of  his  last- 
mentioned  horse,  and  also  thereby  the  same  horse  became 
and  was  greatly  damaged  and  lessened  in  value. 

{If  there  is  any  doubt  whether  the  injury  zuas  occasioned 
by  inifroj)er  riding  or  driving-,  it  is  advisable  to  add  a 
count  nice  the  last,  but  stating  the  defendant's  promise  to 


124  ASSUMPSIT. 


Against  bailees. 


have  been  "  that  whilst  he  should  so  have  the  use  of  the 
last-mentioned  horse,  as  aforesaid,  he  would  take  due  and 
proper  care  thereof,"  and  averring  "that  the  defendant 
had  the  use,  etc.,  and  that  whilst  he  so  had  the  use,  etc., 
he  did  not  take  due  and  proper  care  thereof,  but  wholly 
neglected  so  to  do ;  and  by  reason  thereof  the  last-men- 
tioned horse,  on,  etc.,  there  became  and  was  greatly  dam- 
aged," etc.  //  may  also  he  advisable  to  add  another  count, 
stating,  "that  whereas  on,  etc.,  in,  etc.,  in  consideration 
that  the  plaintiff'  had  delivered  to  the  defendant,  at  his  re- 
quest, a  certain  other  horse,  to  be  had  and  used  by  the 
defendant" — omitting  the  statement  as  to  hire — "the  de- 
fendant promised,"  etc.,  stating  the  fro7nise  as  in  the  count 
last  suggested.  If  there  is  any  demand  for  horse-hire, 
add  a  count  therefor,  as  ante,  under  JVo.  i,  and  the  account 
stated,  {a)      Conclude  as  follozus :) 

Wherefore  the  plaintiff  says  that  he  is  injured  and  has 
sustained  damage  to  the  amount  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

A  hirer  is  not  bound  to  exercise  more  than  ordinary  care 
with  the  thing  let  to  hire,  {b)  but  a  borrower  is  bound  to 
use  extraordinary  care,  {c)  The  use  of  domestic  animals 
necessarily  involves  their  keeping,  and  the  expense  in- 
curred by  the  borrower  for  such  keeping  is  not  a  compen- 
sation to  the  lender  which  makes  the  bailment  one  of 
hiring,  {d) 

The  hirer  of  a  horse  is  not  liable  to  make  compensation 
for  his  death,  occasioned  by  error  of  a  farrier  called  in,  but 
is  liable  if  he,  the  hirer,  imprudently  gave  medicine  him- 
self; nor  is  the  hirer  liable  for  a  horse's  falling,  etc.,  with- 
out the  hirer's  fault,  [e)  He  must  not  ride  a  horse  after  it 
is  exhausted  and  refuses  its  feed,  {f) 

An  agister  of  cattle  for  hire  is  liable  for  the  negligence 

{a)  2  Chit.  PI.  337,  339. 

{b)  Ld.  Raym.  916;   Bui.  N.  P.  72;  Jones,  89;   14  111.  129;  44  111.  225. 

(c)  14  111.  84;  21  111.  259;  37  111.  250. 

[d)  21  111.  259;  37  111.  250. 
{e)  3  Camp.  5. 

if)  I  Gow  C.  N.  P.  I  ;  9  Brad.  223-19;     10    Brad.  425-413;  7  Brad.  395; 
93  111.  458. 


ASSUMPSIT.  125 


Against  carriers. 


of  his  servants,  but  not  for  their  willful  or  malicious  acts, 
committed  without  his  knowledge,  (g-) 

No.  48.     Against  carrier  by  land,  for  loss  of  goods. 

{ConiJiience  as  in  No.  14,  ante,  page  80.)  For  that 
whereas  the  defendant,  before  and  at  tlie  time  of  the  making 
of  his  promise  hereinafter  next  mentioned,  was  a  common 
carrier  of  goods  and  chattels  for  hire,  in  and  by  a  certain 

wagon,  from to ;  and  the  defendant  being  such 

carrier  as  aforesaid,  the  plaintiti',  on,  etc.,  at,  etc.,  at  the 
request  of  the  defendant,  caused  to  be  delivered  to  him  cer- 
tain goods  and  chattels  of  the  plaintiff,  to  wit,  oXf,., {describe 

ikon,  as  in  trover.)  of  the  value  of dollars,  to  be  taken 

care  of  and  safely  carried  by  the  defendant,  as  such  carrier 
as  aforesaid,  in  and  by  the  said  wagon,  from,  etc.,  afore- 
said, to,  etc.,  aforesaid,  and  at  the  last-named  place  to  be 
safely  delivered  by  the  defendant  for  the  plaintiff;  and  in 
consideration  thereof,  and  of  certain  reward  to  the  defend- 
ant in  that  behalf,  he,  the  defendant,  on  the  day  aforesaid, 
in  the  county  aforesaid,  promised  the  plaintiff  to  take  care 
of  the  said  goods  and  chattels,  and  safely  to  carry  the 
same,  in  and  by  the  said  wagon,  from,  etc.,  aforesaid  to, 
etc.,  aforesaid,  and  at  the  last-named  place  safelv  to  deliver 
the  same  for  the  plaintiff.  And  although  the  defendant,  as 
such  carrier  as  aforesaid,  then  received  the  said  goods  and 
chattels,atthe  place  first  aforesaid,  for  the  purpose  aforesaid, 
yet  not  regarding  his  said  promise,  he  has  not  taken  care 
of  the  said  goods  and  chattels,  or  safely  carried  the  same 
from,  etc.,  aforesaid  to,  etc.,  aforesaid,  nor  has  at  tlie  last- 
mentioned  place  safely  delivered  the  same  for  the  plaintiff; 
but  on  the  contrary  thereof,  the  defendant  so  carelessly 
behaved  himself  with  respect  to  the  said  goods  and  chattels, 
that  by  and  through  the  mere  negligence  and  improper 
conduct  of  the  defendant  and  his  servants  in  this  behalf, 
(*)  the  said  goods  and  chattels  afterwaids,  to  wit,  on 
the  day  aforesaid,  became  and  were  wholly  lost  to  the 
plaintiff. 

{If  only  a  part  of  the  goods  was  lost,  proceed  from  the 
asterisk  in  this  count  as  follozvs :  "divers  of  the  said  goods 
and  chattels,  to  wit,  etc.,  of  the  value  of,  etc.,  were  on  the 

Ks)  4^  111-  225- 


126  ASSUMPSIT. 


Asrainst  carriers. 


day  aforesaid  wholly  lost  to  the  plaintiff  -and,  if  according 
to  the  fact — "and  divers  others  thereof,  to  wit,  etc.,  of  the 
value  of,  etc.,  were  then  greatly  damaged,  and  lessened  in 
value  to  the  amount  of,  etc.,"  or  "  the  residue  thereof  was 
then  greatly  damaged,  etc."  Or  see  averment  of  partial 
loss  in  the  follozving  form.  No.  49.) 

{Second  count,  for  not  carrying  within  a  reasonable 
time.)  And  for  that  whereas  also,  on  the  day  aforesaid, 
at,  etc.,  aforesaid,  in  consideration  that  the  plaintiff  had 
then  and  there  caused  to  be  delivered  to  the  defendant,  at 
his  request,  divers  other  goods  and  chattels  of  the  plaintiff, 

to  wit,  etc.,  of  the  value  of dollars,  to  be  taken  care 

of  and  safely  carried  by  the  defendant  from,  etc.,  aforesaid 
to,  etc.,  aforesaid,  and  at  the  last-mentioned  place  to  be  by 
him  delivered  for  the  plaintiff,  for  certain  reward  to  the 
defendant  in  that  behalf,  he,  the  defendant,  promised  the 
plaintiff  to  take  care  of  the  last-mentioned  goods  and  chat- 
tels, and  safely  to  carry  the  same  from,  etc.,  aforesaid  to, 
etc.,  aforesaid,  and  at  the  last-mentioned  place  to  deliver 
the  same  for  the  plaintiff,  in  a  reasonable  time  then  next 
following.  And  although  the  defendant  then  received  the 
last-mentioned  goods  and  chattels,  at  the  place  first  afore- 
said, for  the  purpose  aforesaid,  and  although  a  reasonable 
time  for  the  carriage  and  delivery  thereof  as  aforesaid  has 
long  since  elapsed,  yet  the  defendant  did  not  nor  vvould 
within  such  reasonable  time,  or  afterwards,  though  often 
requested,  safely  carry  the  last-mentioned  goods  and  chat- 
tels from,  etc.,  aforesaid  to,  etc.,  aforesaid,  or  at  the  last- 
named  place  deliver  the  same  for  the  plaintiff,  but  has  hith- 
erto wholly  neglected  so  to  do  ;  whereby  the  last-mentioned 
goods  and  chattels  have  been  and  are  wholly  lost  to  the 
plaintiff. 

{Add  counts  for  money  had  and  received,  and  7tfon  an 
account  stated,  and  conclude  as  in  No.  39  or  No.  47.) 

It  does  not  appear  to  be  necessary,  in  assumpsit,  to 
commence  with  an  inducement  of  the  defendant's  being  a 
common  carrier,  or  of  the  nature  of  the  conveyance,  but 
the  declaration  will  suffice  if  it  merely  states  the  delivery  to 
the  defendant  of  the  goods,  etc.,  to  be  carried  from,  etc., 
to,  etc.,  and  his  undertaking  to  carry  them  accordingly.  {Ji) 

{h)  T  Wils.  281 ;  Bac.  A.,  tit.  Carrier,  A. 


ASSUMPSIT.  127 


Against  carriers. 


The  places  to  and  from  which  the  goods  were  to  be  car- 
ried roust  be  stated  accurately.  (/) 

An  exact  description  of  the  goods  is  not  material;  [J) 
nor  is  it  necessary  to  state  the  amount  of  the  reward  paid, 
or  to  be  paid,  for  the  carriage  of  the  goods,  {k) 

In  general,  the  consignee  of  the  goods  should  be  the 
plaintiff;  //)  but  if  the  consignee  had  no  property  in  the 
goods  at  the  time  of  the  delivery  thereof  to  the  carrier,  the 
consignor  must  sue.  (;;z) 

In  an  action  on  the  case,  however,  the  consignor,  though 
only  a  bailee,  may  sue,  and  so  may  the  real  owner,  and  so 
may  the  consignee,  but  the  first  recovery  of  damages  is  a 
bar  to  any  other.  {11)  And  the  consignor  may  control  the 
destination  of  property  m  transitu^  and  the  carrier  is  bound 
to  obey  his  directions  in  that  regard.  (<?) 


]Vo.  49.    Against  the  captain  of  a  ski'i),  on  his  bill  of  lad- 
ing, for  loss  of  goods. 

{^Commence  as  in  No.  14,  ante,  -page  80.)  For  that 
whereas  the  defendant,  before  and  at  the  time  of  the  mak- 
ing of  his  promise    hereinafter  next  mentioned,  was    the 

master  of  a  certain  vessel  called  the ,  then  at,  etc., 

and  bound  from  thence  to,  etc.  ;  and  the  plaintiff^  on,  etc., 
at,  etc.,  aforesaid,  at  the  request  of  the  defendant,  caused 
to  be  shipped  on  board  of  the  said  vessel  divers  goods  and 
chattels,  to  wit,  etc.,  then  in  good  order  and  well  con- 
ditioned, of  the  value  of dollars,  to  be  taken  care  of 

and  safely  carried  b}-  the  defendant,  on  board  of  the  said 
vessel,  from,  etc.,  aforesaid  to,  etc.,  aforesaid,  and  at  the 
last-mentioned  place  to  be  safely  delivered,  in  the  like 
good  order  and  well  conditioned,  for  the  plaintiff  [the 
dangers  of  navigation   only  excepted) ;  and  in  considera- 

(«■)  2  Stark.  3S5. 

(j)  2  Saund.  74,  a 

(it)  13  East,  114,  n.  a.;  2  New  Rep.  458;  Lcl.  Raym.  115. 

(  /)  8T.  R.  330;  2  Saund.  47,  A. 

(w)  3  B.  &  A.  277 ;  I  Johns.  223;   12  Wend.  176;   15  Wend.  474. 

(»)33ni.  185. 

(  0  )  40  111.  281 ;  43  111.  424. 


128  ASSUMPSIT. 


Against  carriers. 


tion  thereof,  and  of  certain  reward  to  the  defendant  in  that 
behalf,  he,  the  defendant,  thereupon,  on  the  day  and  in  the 
county  aforesaid,  promised  the  plaintiff  to  take  care  of  and 
safely  carry  and  deliver  the  said  goods  and  chattels  as 
aforesaid  {the  dangers  of  navigation  only  excepted) :  And 
although  the  defendant,  so  being  such  master  of  the  said 
vessel  as  aforesaid,  then  and  there  received  the  said  goods 
and  chattels,  to  be  carried  and  delivered  as  aforesaid,  and 
although  a  reasonable  time  for  the  carrying  and  delivering 
of  the  same  as  aforesaid  has  long  since  elapsed,  and  the 
defendant  has  delivered  for  the  plaintiff,  at,  etc.,  aforesaid, 
a  part  of  the  said  goods  and  chattels,  to  wit,  etc.  ;  yet  the 
defendant,  not  regarding  his  said  promise,  did  not  nor 
would  take  care  of  and  safely  carry  the  residue  of  the  said 
goods  and  chattels  from,  etc.,  aforesaid  to,  etc.,  aforesaid, 
and  at  the  last-mentioned  place  safely  deliver  the  same  for 
the  plaintiff  {although  no  dangers  of  navigation  did  pre- 
vent the  defendant  from  so  doing) ;  but  on  the  contrary 
thereof,  the  defendant,  so  being  such  master  of  the  said 
vessel  as  aforesaid,  so  carelessly  behaved  himself  with  re- 
spect to  the  said  residue  of  the  said  goods  and  chattels, , 
that  oh  the  day  aforesaid,  by  and  through  the  mere  neg- 
ligence and  improper  conduct  of  the  defendant  and  his 
servants  in  that  behalf,  the  said  residue  of  the  said  goods 

and  chattels,  being  of  the  value  of  dollars,  became 

and  was  wholly  lost  to  the  plaintiff. 

{The  words  in  italics^  in  the  above  count,  will  be  in- 
serted, or  omitted,  or  varied,  according  to  the  terms  of  the 
bill  of  lading.) 

{Second  count.)  And  for  that  whereas  also,  on  the 
day  aforesaid,  at,  etc.,  aforesaid,  in  consideration  that  the 
plaintiff  had  then  and  there  delivered  to  the  defendant,  at 
his  request,  divers  other  goods  and  chattels,  to  wit,  etc.,  of 
the  value  of,  etc.,  to  be  taken  care  of  and  safely  carried 
by  the  defendant,  on  board  of  a  certain  other  vessel,  from, 
etc.,  aforesaid  to,  etc.,  aforesaid,  and  at  the  last-named 
place  to  be  safely  delivered  for  the  plaintiff,  for  certain 
reward  to  the  defendant  in  that  behalf,  he,  the  defend- 
ant, promised  the  plaintiff  to  take  due  care  of  the  last- 
mentioned  goods  and  chattels  whilst  he  should  have  the 
care  and  custody  thereof  for  the  purpose  aforesaid :  And 
although  the  defendant,  on  the  day  aforesaid,  at,  etc.,' 
aforesaid,  received  the  last-mentioned  goods  and  chattels, 
for  the  purpose  aforesaid,  yet,  not  regarding  his  last-men 


ASSUMPSIT.  129 


Against  carriers. 


tioned  promise,  he  took  so  little  and  such  bad  care  of  those 
goods  and  chattels,  whilst  he  had  the  care  and  custody 
thereof  for  the  purpose  aforesaid,  that  on  the  day  afore- 
said, by  and  through  the  mere  negligence  of  the  defendant 
in  that  behalf,  the  same  became  and  were  wholly  lost  to  the 
plaintiff. 

{Conclude  as  in  No.  ^y,  ante.) 

It  is  provided  by  the  Statute  of  Illinois,  that  "  whenever 
any  property  is  received  by  any  railroad  corporation  to  be 
transported  from  one  place  to  another,  within  or  without  this 
State,  it  shall  not  be  lawful  for  such  corporation  to  limit  its 
common  law  liability  safely  to  deliver  such  property  at  the 
place  to  which  the  same  is  to  be  transported,  by  any  stipula- 
tion or  limitation  expressed  in  the  receipt  given  for  the  safe 
delivery  of  such  property."   (/>) 

But  a  common  carrier  may,  by  contract,  limit  his  common 
law  liability,  except  for  his  actual  negligence,  or  willful  mis- 
conduct. {(J) 

The  mere  acceptance  of  a  bill  of  lading  or  receipt,  which 
contains  conditions  restricting  the  carrier's  liability,  raises  no 
presumption  of  assent  to  its  terms,  {a) 

A  common  carrier  will  be  liable  for  the  actual  value  of 
goods  lost  through  its  negligence,  notwithstanding  they  may 
have  been  shipped  under  a  special  contract  which  in  terms 
fixed  the  value  at  a  less  sum.   iji) 

The  carrier  has  two  distinct  liabilities:  First,  for  losses  by 
accident  and  mistake,  where  he  is  liable  as  insurer.  Second, 
for  losses  by  default  or  negligence  where  he  is  answerable  as 
an  ordinary  bailee,   {c) 

The  adjudications  on  the  subject  of  common   carriers   are 

(/*)  2  Starr  &  Curtis'  An.  Stat.  1945  ;   Rev.  Stat.  (1877)  269. 

{q)  93  111.  523  ;  61  111.  184;  84  111.  239  ;  2  Bradw.  I50;  70  U.  S.  107  ;  12 
Bradw.  54;  19  111.  136  ;  37  III.  485;  42  III.  474;  53  HI.  391  ;  58  111.  409  ;  60 
111.   175  ;  83  111.  273  ;  85  111.  80;  91  N.  Y.  32;  80  Mo.  213. 

(a)  Lawson  on  Carriers,  Sec.  104,  p.  Ill  ;  81  111.  143  ;  42  III.  89  ;  55  Penn. 
St.' 140;  61  111.  1S6;  84  111.  239;  86  111.  71;  89  111.  43,  152;  90  111.  455  ; 
91  III.   195. 

(fi)  9  American  Reporter,  166. 

(c)  93  111.  524  ;  4  Sanford,  136. 

9 


130  ASSUMPSIT. 


On  contracts  of  sale  of  goods. 


too  numerous  to  permit  even  a  summary  of  them  in  a  work 
of  this  kind.  The  cases  in  the  Supreme  Court  of  Illinois 
relating  to  the  duties  and  rights  of  carriers  of  goods,  (r) 
money,  (s)  baggage,  (/)  and  passengers,  (//)  are  noted  below. 


ON  CONTRACTS  OF  SALE  OF  GOODS. 

JVo.  50.     /^or  not  accenting  goods  sold. 

(  Commence  as  in  No  .14,  ante ,  -page  80. )    For  that  whereas 
on,  etc.,  in,  etc.,  the  defendant  bargained  for  and  bought 
of  the  plaintiff^  and  the  plaintifT  then  and  there  sold  to  the 
defendant,  at  his  request,  a  large  quantity,  to  wit. 


bushels  of  wheat,  at  the  price  of for  each 

bushel  thereof,  to  be  delivered  by  the  plaintiff  to  the  de- 
fendant in  a  week  then  next  following, at ,  and  to  be 

paid  for  by  the  defendant  to  the  plaintiff  on  the  deliver}- 
thereof  as  aforesaid ;  and  in  consideration  thereof,  and 
th^^t  the  plaintiff  had  promised  the  defendant, at  his  request, 
ro  f'-  jiver  the  said  wheat  to  him  in  the  time  and  at  the  place 
aforesaid,  the  defendant  thereupon,  on  the  day  /fr 5/  afore- 
said, in  the  county  aforesaid,  promised  the  plaintiff  to  accept 
the  said  wheat  from  him,  and  to  pay  him  for  the  same  on  the 
delivery  thereof  as  aforesaid  :  And  although  the  plaintiff, 
within  a  week  next  after  the  making  of  the  said  promise 
of  the  defendant,  to  wit,  on,  etc.,  at,  etc.,  aforesaid,  was 
ready  and  willing,  and  tendered  and  offered,  to  deliver  the 
said  wheat  to  the  defendant,  and  then  and  there  requested 

(r)  89  111.  152  ;  90  111.  455  ;  91  III.  I95.  617  ;  93  111.  524;  84  III.  239  ;  8l 
111.  143;  88111.  136;  12  Bradw.  54;  83  111.  273;  85  HI.  80;  96  111.  504;  33 
111.  185;  34  III.  389;  38  111.  355  ;  39  111.  312,  335  ;  40  111.  249,  281;  41  IH. 
73  ;  42  111.  73,  89,  132,  474;  43  111.  424  ;  48  111.  402,  425  ;  49  111.  33  ;  52  111. 
123,  249;  53  111.  391  ;  54  111.  58,' 88;  8l  111.  511  ;  8^111.  68;  86  111.  71. 

(s)  23  111.  197;  24  111.  332;  26  111.  504;  37  111.  465;  38  111.  503;  47  111.  26S; 
90  111.  455;  91  111.  195. 

{t)  13  111.  746;  19  111.  556;  21  111.  620,  627;  22  111.  212,  278;  24  111.  332;  52 
111.  81;  53  111.  227. 

(m)  17  111.  406,  509;  18  111.  416;  19  111.  5IO;  21  111.  20;  22  111.  633;  23  111. 

357;  26  III.  373;  30  111.  9;  49  111.  480;  50  111.  264;  51  111.  333,  495;  54  111.  20. 


ASSUMPSIT.  lu 


On  contracts  of  sale,  etc.,  of  goods. 


him  to  accept  the  same,  and  to  pay  therefor  as  aforesaid, 
yet  the  defendant  did  not  nor  would  then,  or  at  any  time 
before  or  afterwards,  accept  the  said  wheat,  or  any  part 
thereof,  from  the  plaintiff,  or  pay  him  for  the  same  as 
aforesaid,  but  refused  so  to  do. 

{If  the  ■plaintiff  was  not  to  deliver  the  goods  at  any 
-particular  time  and  place^  then  state  the  contraet  accord- 
ingly ;  and  if  the  goods  have  been  resold  at  a  loss,  or  any 
expense  has  been  incurred,  state  the  special  damage.  Add 
a  count  for  goods  bargained  and  sold,  under  zvhich  count 
the  plaintiff  may  in  general  recover.^ 

The  damages,  in  an  action  for  not  accepting  goods  at  an 
agreed  time,  place  and  price,  will  be  the  difference  be- 
tween that  price  and  the  market  value  of  the  goods  at  the 
time  and  place  so  fixed,    {y') 

jSfo.  51.     For  not  accepting  goods  made  for  defendant. 

[Commence  as  in  JVo.  14,  ante,  page  80.)  For  that 
whereas  on,  etc.,  in,  etc.,  in  consideration  that  the  plaintiff 

would  make  for  the  defendant,  at  his  request, , 

at  the  price  of ,  {or,  if  no  price  was  7iamed,  say, 

"  at  a  reasonable  price  for  the  same,")  and  would  deliver 

to  him  the  said ,  when  the  same  should  be  made  {if 

there  were  any  terms  as  to  the  time  or  -place  of  delivery, 
state  them  accordingly) ,  he,  the  defendant,  promised  the 

plaintiff  to  accept  of  him  the  said  ,  when  the   same 

should  be  so  made,  and  to  pay  him  the  said  price  for  the 
same  on  the  delivery  thereof  as  aforesaid  :  And  the  plaintiff 
avers  that  he  did  afterwards,  to  wit,  on,  etc.,  there  make  the 

said for  the  defendant,  and  thereupon  then  and  there 

was  ready  and  willing,  and  offered,  to  deliver  the  same  to 
him,  and  requested  him  to  accept  and  pay  for  the  same  as 
aforesaid.     Yet  the  defendant  did  not  nor  would  then,  or 

at  any  other  time,  accept  of  the  plaintiff  the  said  ,  or 

pay  him  therefor  the  price  aforesaid,  or  any  part  thereof, 
but  refuses  so  to  do. 

{Counts  may  be  added  for  goods  bargained  and  sold, 
work  and  materials,  money  paid,  and  account  stated,  with 
conclusion  as  in  No.  39.) 

(r;)  9B.  &  C.  145;  3  Camp.  480;   12  111.   1S4;  iS  111.   155;  28  111.  457; 
41  III.  102;  45  111.  43,  79;  49  HI.  446. 


172  ASSUMPSIT. 


On  contracts  of  sale,  etc.,  of  goods. 


No.   52.     Fo7'  not   delivering  goods   -within    a   specified 

time,  etc. 

{Commence  as  in  No.  14,  ante,  -page  80.)  For  that 
whereas  on,  etc.,  in, etc.,  the  plaintiff,  at  the  request  of  the 
defendant,  bargained  with  the  defendant  to  buy  of  him,  and 
the  defendant  then  and  there  sold  to  the  plaintiff,  a  large 

quantity,  to  wit,  bushels,  of  wheat,  at  the  price  of 

for  each  bushel  thereof,  to  be  delivered  by  the 

defendant  to  the  plaintiff  in  a  week  then  next  following,  at 

,  and  to  be  paid  for  by  the  plaintiff  to  the  defendant  on 

the  delivery  thereof  as  aforesaid ;  and  in  consideration ' 
thereof,  and  that  the  plaintiff  had  promised  the  defendant, 
at  his  request,  to  accept  and  receive  the  said  wheat,  and  to 
pay  him  for  the  same  at  the  price  aforesaid,  he,  the  defend- 
ant, on  the  dd.y  Ji?'st  aforesaid,  in  the  county  aforesaid,' 
promised  the  plaintiff  to  deliver  the  said  wheat  to  him  as 
aforesaid :  And  although  the  said  time  for  the  deliver}'-  of 
the  said  wheat  has  long  since  elapsed,  and  the  plaintiff  has 
always  been  ready  and  willing  to  accept  and  receive  the 
said  wheat,  and  to  pay  for  the  same  at  the  price  aforesaid, 
to  wit,  at,  etc.,  aforesaid,  yet  the  defendant  did  not  nor 
would,  within  the  time  aforesaid  or  afterwards,  deliver  the 
said  wheat,  or  any  part  thereof,  to  the  plaintiff,  at,  etc., 
aforesaid,  or  elsewhere,  but  refused  so  to  do ;  whereby  the 
plaintiff  has  been  deprived  of  divers  great  gains  and  profits 
which  otherwise  would  have  accrued  to  him  from  the  deliv- 
ery of  the  said  wheat  to  him  as  aforesaid. 

( One  or  more  counts,  varying  the  statement,  may  be 
added,  and  such  common  counts  as  the  circtunstances  may 
require.) 

Where  the  contract  is  to  deliver  generally,  and  not  in 
any  named  time,  a  special  request  to  deliver  must  be  aver- 
red, {w)  or  else  it  must  be  shown  that  the  defendant  has 
put  it  out  of  his  power  to  deliver  the  goods,  as  by  his  hav- 
ing resold  them,  or  the  like,  (a-) 

Where  two  acts  are  to  be  done  at  the  same  time,  as  selling 
and  delivering,  and  receiving  and  paying,  in  an  action  for 


(vj)  5  T.  R.  409;  13  111.  72. 

(«)  5  B.  &  Aid.  712;  I  D.  &  R.  361. 


ASSUMPSIT.  133 


On  contracts  of  sale,    etc.,  of  goods. 


non-delivery  it  is  only  necessary  for  the  plaintiff  to  aver 
and  prove  a  readiness  to  pay,  whether  the  other  party  w^as 
at  the  place,  ready  to  deliver,  or  not.  (y) 

No.  53.     For  not  delivering  goods  at  a  -particular  ■place ^ 

etc. 

(^Commence  as  in  IVo.  14,  ante,  page  80.)  For  that 
whereas  on,  etc.,  in,  etc.,  the  plaintiff,  at  the  request  of 
the  defendant,  bargained  for  and  agreed  to  buy  of  the  de- 
fendant a  large  quantity,  to  wit, bushels,  of  oats,  upon 

the  following  terms,  that  is  to  say, that  inhere  set  out  the 
terms  of  t-he  contract,  which  may  be  thus:)  "such  oat'=' 
should  be  of  fair  quality  and  color,  and  of  the  weight  of 

pounds  per  bushel,  and  should  be  delivered  for  the 

plaintiff  within  a  reasonable  time  thereafter,  free  of  expense 

to  him,  on  board  some boat  in  the  river ,  to  be 

conveyed  in  such  boat  from  thence  to ,  at  a  freight  not 

exceeding  cents  .per  bushel,  and   that   the   plaintiff 

should  pay  the  defendant  for  such  oats  at  the  rate  of 

cents  for  each  bushel  thereof;"  and  thereupon,  in  consid- 
eration of  the  premises,  and  that  the  plaintiff  had  prom- 
ised the  defendant,  at  his  request,  to  accept  a  delivery  and 
shipment  of  such  oats  as  aforesaid,  and  to  pa}'  him  for  tlie 
same  at  the  rate  in  that  behalf  aforesaid,  the  defendant,  on 
the  day  aforesaid,  in,  etc.,  aforesaid,  promised  the  plaintiff 
that  he,  the  defendant,  would  within  a  reasonable  time 
then  next  following  procure  to  be  delivered  and  shipped 
for  the  plaintiff,  in  manner  aforesaid,  the  said  quantity  of 
oats,  of  such  quality,  color  and  weight  as  aforesaid,  to  be 
so  conve3'ed  as  aforesaid  :  And  although  a  reasonable  time 
for  that  purpose  has  long  since  elapsed,  and  the  plaintiff 
was  always  during  and  since  that  time  there  readv  and 
willing  to  accept  a  delivery  and  shipment  of  such  oats  as 
aforesaid,  and  to  pay  for  the  same  as  aforesaid,  whereof 
the  defendant  then  had  notice,  yet  the  defendant  (though 
often  thereto  requested)  did  not  nor  would,  within  such 
reasonable  time  or  afterwards,  procure  to  be  delivered  or 
shipped  for  the  plaintiff,  in  manner  aforesaid  or  otherwise, 
the  said  quantity  of  oats,  of  such  quality,  color  and  weight 
as  aforesaid,  or  any  oats  whatsoever,  but  refused  and  still 

(j)  29  111.  14s;  17III.  58S. 


134  ASSUMPSIT. 


On  policies  of  insurance. 


refuses  so  to  do  ;  by  means  whereof  the  plaintiff  has  been 
deprived  of  great  gains  and  profits  which  he  miglit  and 
otherwise  would  have  acquired  by  reselling  such  oats  at 
much  higher  prices. 

{^Special and  common  counts  juaybc  added,  as  in  A^o.  52.) 

It  would  seem  safer,  in  a  count  like  the  above,  to  aver  a 
special  request,  but  the  precedents  in  the  books  of  forms  do 
not  contain  that  averment,  [z) 


ON    POLICIES   OF    INSURANCE. 

JVo.  54.      On  a  fir e-insiirance  policy ,  renewed. 

(^After  stating  the  court,  term,  and  vemie :)  A.  B., 
plaintiff,  by  C.  D.,  his  attorney,  complains  of  the In- 
surance Company,  defendant,  of  a  plea  of  trespass  on  the 
case  on  promises  :  For  that  whereas  the  defendant,  on, 
etc.,  in,  etc.,  made  its  policy  of  insurance,  and  delivered 
the  same  to  the  plaintiff,  and  thereby  then  and  there,  in 

consideration  of dollars,  to  it  paid  by  the  plaintiff',  did 

insure  the  plaintiff  against  loss  or  damage  by  tire,  to  the. 

amount  of dollars,  on  {here  describe  the  property  on 

which  the  insurance  was  effected).  And  the  defendant,  for 
the  consideration  aforesaid,  did  by  the  said  policy  promise 
and  agree  to  make  good  and  satisfy  unto  the  plaintiff,  his 
executors,  administrators  or  assigns,  all  such  loss  or  dam- 
age, not  exceeding  the  said  sum  of dollars,  as  should 

happen  by  fire  to  the  said  property  whereon  the  said  insur- 
ance was  so  made  as  aforesaid,  from,  etc.,  at  noon,  until, 
etc.,  at  noon,  such  loss  or  damage  to  be  estimated  accord- 
ing to  the  true  and  actual  value  of  the  said  property  at  the 
time  such  loss  or  damage  should  happen,  and  the  amount 

thereof  to  be  paid  within days  after  notice  and  proof 

of  such  loss  or  damage  should  be  made  by  the  plaintiff,  in 
conformity  to  the  conditions  annexed  to  the  said  policy  : 
Provided  always,  and  it  was  by  the  said  policy  declared, 
that  the  defendant  should  not  be  liable  to  make  good  any 
loss  or  damage  which  might  happen  by  means  of  any  in- 
vasion, insurrection,  riot  or  civil  commotion,  or  of  an}- 
military  or  usurped  power ;  and  that  in  case   the  plaintiff 

iz)  2  Chit.  PI.  270;   I  Swan's  Pr.  327. 


ASSUMPSIT.  135 


On  policies  of  insurance. 


had  effected  any  other  insurance  against  loss  by  lire  on  the 
said  property,  not  notified  to  the  defendant  and  indorsed  on 
the  said  pohc3s  then  the  said  poHcy  should  be  void ;   and 
that  if  the  plaintiff,  or  his  executors,  administrators  or  as- 
signs, should  thereafter  effect  any  other  insurance  on  the 
same  property,  and  should  not  with  all   reasonable  dili- 
gence give  notice  thereof  to  the  defendant,  and  have  the 
same  indorsed  on  the  said  polic}',  or  otherwise  acknowl- 
edged by  the  defendant  in  wridng,  the  said  policy  should 
cease,  and  be  of  no  further  effect ;  and  that  in  case  of  any 
other  insurance  on  the   same   property,  whether  prior  or 
subsequent  to  the  date  of  the  said  policy,  the  plaintiff  should 
not,  in  the  event  of  loss  or  damage  of  the  said  property,  be 
entitled  to  demand  or  recover  of  the  defendant,  on  the  said 
policy,  any  greater  proportion  of  such  loss  or  damage  than 
the  said  amount  by  the  said  policy  insured  should  bear  to 
the  whole  amount  of  insurance  on  the  said  property  ;   and 
that   in    case    the  building  in  the  said  policy   mentioned 
should,  at  any  time  whilst  the  said  policy  would  otherwise 
continue  in  force,  be  appropriated,  applied  or  used  to  or 
for  the  purpose  of  carrying  on  or  exercising  therein  any 
trade,  business  or  vocation  denominated  hazardous  or  extra- 
hazardous, or  specified  in  the  memorandum  of  special  rates 
in  the  conditions  annexed  to  the  said  policy,  or  for  the  pur- 
pose of  storing  therein  any  of  the  articles,  goods  or  merchan- 
dise in  the  same  conditions  denominated  hazardous,  or  extra- 
hazardous, or  included  in  the  said  memorandum  of  special 
rates,  unless  in  the  said  policy  otherwise  speciall}'  provided, 
or  thereafter  agreed  to  by  the  defendant  in  wrifing,  added 
to  or  indorsed  on  the  said  policy,  then  and  from  thence- 
forth, so  long  as  the  same  building  should  be  so  appro- 
priated, applied  or  used,  the  said  policy  should  cease,  and 
be  of  no  force  or  efiect ;  and  that  the  said  insurance  so 
witnessed  by  the  said  policy  was  not  intended  to  apply  to 
or  cover  any  books  of  account,  written  securities,  deeds  or 
other  evidences  of  title  to  land,  nor  to  bonds,  bills,  notes, 
or  other  evidences  of  debt,  nor  to  money  or  bullion  ;  and 
that  the  said  policy  was  made  and  accepted  with  reference 
to  the  said  conditions  tiiereto  annexed,  which  were  to  be 
used  and  resorted  to  in  order  to  explain  the  rigiits  and  obli- 
gations of  the  said  parties  to  the  said  policy,  in  all  cases  not 
therein  otherwise  specially  provided  for  ;  and  tliat  the  same 
insurance  (the  risk  not  being  changed)  might  be  continued 
for  such  further  term  as  might  be  agreed  upon,  on  payment 


136  ASSUMPSIT. 


On  policies  of  insurance. 


of  the  premium  therefor,  and  indorsement  of  such  payment 
on  the  said  poHcy,  or  receipt  given  for  the  same  ;  and  that  the 
interest  of  the  plaintiff  in  the  said  policy  was  not  assigna- 
ble, unless  by  consent  of  the  defendant,  manifested  in 
writing  ;  and  that  in  case  of  any  transfer  or  termination  of 
the  interest  of  the  plaintiff  in  the  said  property,  either  by 
sale  or  otherwise,  without  such  consent,  the  said  policy 
should  thenceforth  be  void.  And  the  plaintiff  avers,  that 
the  said  conditions  in  the  said  policy  mentioned  are  as  fol- 
lows, that  is  to  say  :  {here  insert,  verbatim,  the  conditions, 
or  sueh  ^arts  thereof  as  constitute  a  condition  -precedent.) 
And  the  plaintiff  further  avers,  that  afterwards,  to  wit,  on, 
etc.,  in,  etc.,  in  consideration  of  the  payment  of  the  further 

sum  of dollars,  then  and  there  made  by  the  plaintiff 

to  the  defendant,  the  receipt  zuhereof  -mas  by  the  defendant 
then  and  there  acknowledged  in  zuriting,  and  indorsed  on 
the  said  policy,  the  defendant  continued  the  said  insurance 
for  the  further  term  of,  etc.,  then  and  there  agreed  upon 
between  the  plaintiff  and  the  defendant,  to  wit,  from  the 
day  last  aforesaid,  at  noon,  until,  etc.,  at  noon.  And  there- 
upon, on,  etc.,  aforesaid,  in  consideration  of  the  premises, 
and  that  the  plaintiff  had  promised  the  defendant  to  keep 
and  perform  all  things  in  the  said  policy  contained  on  the 
part  of  the  plaintiff  to  be  kept  and  pertbrmed,  the  defend- 
ant there  promised  the  plaintiff  that  it  wcild  keep  and  per- 
form all  things  in  the  said  policy  mentioned  on  its  part  to 
be  kept  and  performed  ;  and  the  defendant  then  and  there 
became  and  was  an  insurer  to  the  plaintiff  of  the  said  sum 
of,  etc.,  upon  the  said  propert}^  as  aforesaid.  And  the 
plaintiff  further  avers,  (*)  that  at  the  time  of  the  making  of 
the  said  policy,  and  from  thence  until  the  happening  of  the 
loss  and  damage  hereinafter  mentioned,  he  had  an  interest 
in  the  said  pro^ert}"  to  the  amount  of  the  said  sum  so  by  the 
defendant  insured  thereon  as  aforesaid.  And  the  plaintiff 
further  avers,  that  on,  etc.,  the  said  property  was  consumed 
and  destroyed  by  fire,  whereby  the  plaintifi'  then  and  there 
sustained  loss  and  damage  on  the  said  property  to  the 
amount  of  the  sum  last  aforesaid,  which  said  loss  and  dam- 
age did  not  happen  by  means  of  any  invasion,  insurrection, 
riot  or  civil  commotion,  or  of  any  militar}^  or  usurped 
power.  And  the  plaintiff  further  avers,  that  forthwith  after 
the  happening  of  the  said  loss  and  damage,  to  wit,  on,  etc., 
he  there  gave  notice  thereof  to  the  defendant,  and  as  soon 
thereafter  as  possible,  to  wit,  on,  etc.,  there  delivered  to  the 


ASSUMPSIT.  137 

On  policies  of  insurance. 

defendant  as  particular  an  account  of  the  said  loss  and  dam- 
age as  the  nature  of  the  case  would  admit ;  which  said 
account  was  signed  by  the  plaintiff,  and  accompanied  by  his 
oath  that  the  same  was  in  all  respects  fust  and  true,  and 
showed  the  value  of  the  said  property,  and  in  what  general 
manner  the  said  building  was  occupied  at  the  time  of  the 
happening  of  the  said  loss  and  damage,  and  the  name  of 
the  person  then  in  the  actual  possession  thereof  (^or  "in 
charge  thereof,  there  being  no  person  in  the  actual  pos- 
session of  the  same"),  and  when  and  how  the  said  fire  orig- 
inated, so  far  as  the  plaintiff  knew  or  believed,  and  his  in- 
terest in  the  said  property  at  that  time ;  to  which  said 
account  was  annexed,  and  therewith  delivered,  a  certificate 
under  the  hand  and  seal  of  the  notary  public  nearest  to  the 
place  of  the  said  fire,  to  wit,  E.  F.,  showing  that  he  the 
said  notary  had  examined  the  circumstances  attending  the 
said  fire,  and  the  loss  and  damage  alleged,  and  was  ac- 
quainted with  the  character  and  circumstances  of  the 
plaintiff',  and  verily  believed  that  the  plaintiff  had  by  mis- 
fortune, and  without  fraud  or  evil  practice,  sustained  loss 

and  damage  on  the  said  property  to  the  amount  of 

dollars.  And  the  plaintiff' further  avers,  that  there  was  not 
at  or  since  the  time  of  the  making  of  the  said  policy  (^or 
"the  continuance  of  the  said  insurance  as  aforesaid")  any 
other  insurance  on  the  said  property ;  and  that  the  said 
building  was  not  at  or  since  that  time  appropriated,  applied 
or  used  to  or  for  the  purpose  of  carrying  on  or  exercising 
therein  any  trade,  business  or  vocation  denominated  haz- 
ardous or  extra-hazardous,  or  specified  in  the  said  memo- 
randum of  special  rates,  or  for  the  purpose  of  storing  therein 
any  of  the  articles,  goods  or  merchandise  in  the  said  condi- 
tions denominated  hazardous  or  extra-hazardous,  or  included 
in  the  said  memorandum  of  special  rates  {except  as  specially 
provided  in  the  said  policy  as  aforesaid,  c/c.)  (*)Andthe 
plaintiff'  further  avers,  that  although  he  has  kept  and  per- 
formed all  things  in  the  said  policy  contained  on  his  part  to 
be  kept  and  performed,  and  although  he  has  sustained  loss 
and  damage  by  fire  on  the  said  property,  in  the  manner  and 
to  the  amount  aforesaid,  nevertheless  the  defendant,  though 
often  thereto  requested,  has  not  yet  paid  to  the  plaintiff  that 
amount,  or  any  part  thereof,  but  refuses  so  to  do ;  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc.  {If  more  than  one  count,  the  con- 
clusion -will  be  as  in  No.  39,  ante.) 


I3S  ASSUMPSIT. 


On  policies  of  insurance. 


Policies  of  insurance  vary  so  greatly  in  their  forms  and 
provisions,  that  the  precedents  given  are  only  to  be  con- 
sidered as  indicating-  the  general  structure  of  the  declara- 
lion. 

As  to  the  necessity  of  the  averment  of  interest  in  the 
plaintiff,  see  the  authorities  mentioned  in  the  note,   (a) 

Where  a  term  of  insurance  about  to  expire  is  continued, 
and  a  renewal  receipt  given,  such  receipt  does  not  consti- 
tute a  new  contract  of  insurance,  but  merel}^  continues  the 
policy  in  force  for  another  term  ;  and  if  a  loss  occurs  during 
the  new  term,  a  recovery  must  be  had,  if  at  al^,  on  the 
original  contract,  (d)  And  this  is  the  case,  though  the 
new  premium  was  paid  by  the  assignee,  and  the  renewal 
receipt  was  given  to  him.  (<;)  It  seems  it  is  otherwise, 
however,  where  a  receipt  is  given  renewing  a  policy  that 
has  expired,   [d) 

A  policy  of  insurance  is  not  assignable,  so  as  to  enable 
the  assignee  to  sue  in  his  own  name  ;  (e)  but  where  the  as- 
signee of  a  policy  has  taken  a  renewal  receipt  to  himself, 
and  has  paid  the  new  premium,  he  can,  in  case  of  loss, 
maintain  assumpsit  in  his  own  name,  not  on  the  policy,  but 
on  the  new  and  express  promise  of  the  insurer  to  pay  him 
for  the  loss.   (_/") 

Policies  of  insurance  are  to  be  construed  as  other  mer- 
cantile contracts,  but  the  conditions  and  provisions  of  such 
policies  are  to  be  construed  strictly  against  the  under- 
writers, (g) 

The  following  is  merely  suggested  as  a  shorter  form  of 
declaring  on  a  policy  of  insurance  : 

(  a)  2  Chit.  PI.,  5  Am.  ed.  iSi,  note  X',  and  cases  cited;  Id.    ii  Am-  "d. 
i8i,  note  m,  and  cases  cited;  Ol.  Prec.  223;   i  Gilm.  236;  32  111.  221. 
(^)  32  111.  221;  28  111.  235. 

(c)  32  111.  221. 

(d)  54  111.  164;  34  111.  46. 

(e)  32  111.  221 ;  34  111.  46,  and  cases  cited, 
(y)  34  111.  46,  and  cases  cited. 

is-)  49  111-  106. 


ASSUMPSIT.  139 


On  policies  of  insurance. 


No.  55.      Gn  a  fire-insurance  -policy. 

{Commence  as  in  the  last  precedent.)  For  that  whereas 
the  defendant,  on,  etc.,  in,  etc.,  made  its  poHcy  of  in- 
surance, and  delivered  the  same  to  the  plaintiff,  and  foi 
the  consideration  therein  expressed  promised  the  plaintiff 
in  the  terms  of  the  said  policy  and  the  conditions  thereto 
annexed,  which  said  policy  and  conditions  here  follow  in 
these  words  and  figures,  to  wit :  inhere  insert  the  policy 
and  conditions  Yei'h'dhm.)  And  the  plaintiff  avers  (pro- 
ceed as  in  the  last  precedent,  from  the  one  asterisk  to  the 
other).  Nevertheless,  although  the  plaintiff  has  kept  and 
performed  all  things  in  the  said  policy  mentioned  on  his 
part  to  be  kept  and  performed,  the  defendant  has  not  yet 
paid  to  the  plaintiff  the  said  amount  of  the  loss  and  damage 
aforesaid,  or  any  part  thereof,  but  refuses  so  to  do. 

This  mode  of  declaring — alleging  that  the  defendant 
promised  in  the  terms  of  a  certain  writing,  and  setting  it 
it  out  in  h(BC  verba — is  sufficient,  {Ji)  and  has  some  ad- 
vantages where  the  contract  is  of  the  vexatious  length  and 
complexity  usual  in  policies  of  insurance. 

The  principal  Illinois  authorities  on  the  subject  of  in- 
surance are  noted  below.   (/) 

(h)  4  Man.  &  Gr.  709;  16  Adol.  &  EI.,  N.  S.  90;  l  Freem.  PI.  476;  119  111. 
474- 

(/)  I  Gilm.  236;  13  111.  89,  676;  16  III,  236;  18  111.  553;  21  III.  513;  22  111. 
278,  462;  24  III.  455;  25  III.  466;  26  III.  36J;  28  111.  235;  29  111.  38;  32  111. 
221;  34  111.  46;  37  111.  iiT,,  354.  465;  38  HI.  166;  40  111.  398;  41  111.  295;  43 
III.  327;  45  III.  86,  301,  303.482;  46  III.  263,  394;  47  111.  86,  516;  48  111.  32. 
313;  49  II'.  106,  180,  251.  259;  50  III.  in,  120,  419;  51  III.  283,  342,  409;  52 
III.  53,  442,  464,  518;  53  III.  151,  516;  54  111.  164,  513;  14  Bradw.  aoi;  83  III. 
410;  81  III.  88;  90  111.  156;  91  III.  159;  96  111.  309;  97  111.  474;  98  III.  58 
324;  no  III.  102,  366,  603;  112  111.  68;  114  111.  108,  463;  117  111.  273;  USUI. 
396,  492. 


I40  ASSUMPSIT. 


Defenses  to  the  action — Motions  to  dismiss. 


DEFENSES  TO  THE  ACTION   OF  ASSUMP- 
SIT, ETC. 


The  defendant  in  an  action  may  make  his  defense  in 
various  ways,  according  to  the  circumstances :  he  may 
move  to  quash  the  writ,  etc.,  or  to  dismiss  the  suit;  or 
plead  to  the  jurisdiction  of  the  court,  or  in  abatement  of 
the  action;  or  demur  to  the  declaration ;  or  plead  in  bar 
of  the  action. 

The  observations  here  submitted,  on  the  subject  of  de- 
fenses, are  appHcable  to  all  the  forms  of  action,  and  will 
be  referred  to  under  the  proper  heads. 

The  subject  will  be  considered  in  the  following  order : 

I.  Motions  to  quash,  or  to  dismiss. 
II.  Pleas   to  the  jurisdiction,  and  in  abatement, 

REPLICATIONS   THERETO,    ETC.,  WITH   PRECEDENTS. 

III.  Pleas  in  bar,  replications  thereto,  etc.,  with 

PRECEDENTS. 

IV.  Demurrers,  with  precedents. 

As  under  the  last  head  demurrers  to  subsequent  plead- 
ings, as  well  as  to  declarations,  are  considered,  the  subject 
of  demurrer  is  treated  after  that  of  pleas  in  bar. 

I.    MOTIONS  TO  quash,  OR  TO  DISMISS. 

Hotv  made. — If  sufficient  ground  appears  from  the  pa- 
pers or  record,  it  is  not  always  necessary  (although  prefer- 
able) that  the  motion  be  in  writing — as  where  a  suit  is 
brought  on  an  office-bond,  etc.,  without  filing  security  for 
costs  ;  but  when  the  motion  to  dismiss  is  on  the  ground  of  the 


ASSUMPSIT.  141 


Defenses  to  the  action — Motions  to  dismiss. 


plaintiff's  being  a  non-resident,  and  not  having  filed  secu- 
rity for  costs,  then  such  motion  must  be  based  on  an  affidavit 
showing  the  non-residence  of  the  plaintiff.  As  a  general 
rule,  however,  motions  should  be  made,  and  the  grounds 
thereof  set  forth,  in  writing. 

When  must  be  made. — All  motions  of  a  dilatory  nature 
must  be  interposed  at  the  first  opportunity.  If  there  is  any 
delay  in  making  such  a  motion,  good  reason  for  the  delay 
must  be  shown  to  the  court.  («)  A  motion  of  this  kind 
comes  too  late  after  a  general  appearance  in  the  cause,  {b) 
As  to  what  is  a  general  appearance,  it  is  held  that  where  a 
defendant  has  made  several  successive  motions  in  a  cause, 
without  in  such  motions  limiting  his  appearance  to  the 
special  purposes  thereof,  he  has  appeared  generally ;  (c) 
and  it  is  said  that  if  a  defendant  appears  for  a  special  pur- 
pose, such  as  to  show  that  he  is  not  properly  in  court,  he 
ought  to  restrict  his  appearance  accordingly  in  his  mo- 
tion, as  otherwise  he  may  be  held  to  have  appeared  gener- 
ally, id)  An  appearance  is  not  withdrawn  by  the  with- 
drawing of  a  plea  by  leave  of  the  court,  {e)  Where  there 
was  defective  notice  by  publication  to  one  of  the  defendants, 
a  non-resident,  but  the  record  showed  that  the  "defend- 
ants" had  moved  to  quash  the  summons,  it  was  held  that 
there  was  such  an  appearance  by  the  non-resident  as  cured 
the  defect  in  the  notice.  {/) 

When  ivrit^  etc.,  will  be  quashed,  or  suit  dismissed,  on 
viotion. — If  the  writ  is  not  under  seal,  {g)  or  is  returnable 

(a)  I  Scam.  266;  4  Scam.  143,  174;  5  Gilm.  559;  12  111.  154;  13  111.  344, 
570;  16  111.  390;  25  III.  202;  26  111.  200;  31  111.  306;  32  111.  474;  35  III.  156, 
444;  37  111.  306;  39  111.  220;  40  111.  128;  so  111.439;  78  111.  208;  81  111.  61. 

{b)  2  Scam.  462  ;  22  111.  9 ;  25  111.  107  ;  34  111.  395  ;  35  111.  53 ;  39  111.  172; 
40  111.  44;  46  111.  66;  50  111.  503. 

{c)   25  111.  107;  33  111.  518;  35  111.53. 

id)   Ibid.  See  i  Scam.  238,  395  ;  20  111.  66;  66  111.  157. 

\e)   34  111.  395. 

(/)  42  111-  315- 

[g)   I  Scam.  238,  250,  395;  12  111.  232;  19  111.  293. 


142  ASSUMPSIT. 


Defenses  to  the  action — Motions  to  dismiss. 


on  any  other  day  than  the  first  day  of  the  term,  or  the  day 
fixed  by  law,  {h)  or  does  not  show  with  certainty  in  tlie 
court  of  what  county  the  defendant  is  required  to  appear,  {i) 
or  varies  materially  from  the  declaration,  etc.,  (/)  (but 
not,  it  seems,  when  the  variance  is  in  the  name  of  the  de- 
fendant,) (^k)  such  writ  will  be  quashed  on  motion.  The 
same  matters  maybe  pleaded  in  abatement.  (/)  A  writ  of 
capias  ad  respondendum^  attachment  or  replevin  may  also 
be  quashed  on  motion,  for  insufficiency  of  the  affidavit  on 
which  such  writ  is  based,  or  defect  in  the  writ  itself;  but  in 
attachment  the  affidavit  and  writ,  {iii)  and  in  replevin  (in 
the  discretion  of  the  court)  the  affidavit,  {71)  may  in  Illinois 
be  amended.  Also,  in  the  case  of  an  attachment,  (and 
probably  now  of  a  capias^')  the  writ  may  be  quashed,  or 
suit  dismissed,  for  want  of  the  bond  required  by  law,  (c) 
unless  the  plaintiff"  will  furnish  the  requisite  bond ;  and 
if  the  declaration  is  not  filed  on  the  return  of  the  attach- 
ment, or  at  the  term  to  which  the  same  is  returnable,  the 
defendant  may,  in  the  discretion  of  the  court,  have  the  suit 
dismissed.  (^) 

In  Illinois,  the  suit  may  in  certain  cases  be  dismissed  for 
want  of  the  security  for  costs  required  by  statute  to  be  given 
before  the  commencement  of  the  suit,  as  has  been  already 
mentioned  (see  the  form  of  the  instrument,  ante,  page  41)  ; 
or  for  a  failure  to  give  security  for  costs,  after  the  com- 
mencement of  the  suit,  in  compliance  with  a  rule  obtained 
by  the  defendant  on  a  showing  of  insolvency,  etc.,  of  the 
plaintiff,  {q) 

ill)  Gould's  PI.  267;  5  Mass.  100;  3  Scam.  541 ;  20  111.  331 ;  28  111.  70;  4r 
111.  443- 

(/)  20  111.  89;  23  111.  473. 

(/)  20  111.  46;  52  111.  iSo. 

(k)  36  111.  373.     But  see  20  111.  46;   i  Chit.  PI.  391. 

(/)  Gould's  PI.  267,  251. 

(w)   Rev.  Stat.  (1877)  737;  2  Scam.  492 

{n)   I  Gilm.  35;   13  111.  122;  39  111.  117. 

{0)  Rev.  Stat.  (1877)  147;  2  Scam.  15;  3  Scam.  577;  5  Gilm.  304. 

{/>)   Rev.  fc'tat.  (1877)  150;  29  111.  291. 


ASSUMPSIT.  143 


Defenses  to  the  action — Motions  to  dismiss. 


The  principal  cases  relating  to  this  subject  (besides  those 
heretofore  referred  to  in  considering  when  dilatory  motions 
must  be  made)  are  noted  below,  (r) 

Section  17  of  the  Illinois  practice-act  of  1872,  after  pro- 
viding for  a  continuance  of  the  cause  if  the  plaintiff  shall 
not  file  his  declaration,  etc.,  ten  days  before  the  return- 
term,  further  provides  that  if  no  declaration  shall  be  filed 
ten  days  before  the  second  term,  the  defendant  shall  be  en- 
titled to  judgment  as  in  case  of  a  nonsuit,  (5)  which  is  the 
same  in  eft'ect  as  a  dismissal  of  the  cause. 

By  section  23  of  the  same  act  it  is  provided,  that  "  at  any 
time  before  final  judgment  in  a  civil  suit,  amendments  may 
be  allowed  on  such  terms  as  are  just  and  reasonable,  intro- 
ducing any  party  necessary  to  be  joined  as  plaintitf  or  de- 
fendant, discontinuing  as  to  any  joint  plaintiff"  or  defendant, 
changing  the  form  of  the  action,  and  in  any  matter,  either 
of  form  or  substance,  in  any  process,  pleading  or  proceed- 
ing, which  may  enable  the  plaintiff"  to  maintain  the  action 
for  the  claim  for  which  it  was  intended  to  be  brought,  or 
the  defendant  to  make  a  legal  defense."  The  statutes  of 
some  other  states  contain  similar  liberal  provisions  in  rela- 
tion to  amendments. 

ir)  Breese,  377;  i  Scam.  383,  451,  551,  592;  3  Scam.  184;  i  Gilm.  553; 
2  Gilm.  381,  69S;  3  Gilm.  i,  97;  5  Gilm.  20,  559;  11  111.  19;  12  111.  27,  154; 
14  111.  71 ;  16  111.  291 ;  19  111.  54;  21  111.  500;  23  111.  533;  24  111.  626;  25  111. 
5S7;  27  111.  42,  332;  28  111.  112;  30  111.  43,  185;  32  111.  474;  76  111.  206,234 
507;  40  111.  122;  51  III.   106;  53  III.  247. 

(s)   Rev.  Stat.  (1874)  738;  Rev.  Stat.  (1877)  736. 


144  ASSUMPSIT. 


Pleas  in  abatement,  etc. — Order,  and  time,  of  pleading. 


II.      PLEAS  TO  THE  JURISDICTION,  AND  IN  ABATEMENT. 

Order  of  ^pleading. — "The  law  has  prescribed  and  set- 
tled the  order  of  pleading  which  the  defendant  is  to  pursue, 
viz  : 

15/.    To  the  jurisdiction  of  the  court, 
idly.    To  the  disahilitv.  etc.,  of  the  person: 
(is/.    Ofthc'flaintiff; 
\  idly.    Of  the  defendant. 
2,dlv.    To  the  count,  or  declaration. 
<;  ^thly.    To  the  writ: 

1st.    To  the  form  of  the  writ: 

C  15/.  Matter  apparent  on  the  face  of  it; 
\  2dly.  Alatter  dehors; 
idly.    To  the  action  of  the  writ, 
^thly.    To  the  action  itself  in  bar  thereof 

This,  it  is  said,  is  the  natural  prder  of  pleading,  because 
each  subsequent  plea  admits  that  there  is  no  foundation  for 
the  former, — as  when  the  defendant  pleads  to  the  person 
of  the  plaintiff,  he  admits  the  jurisdiction  of  the  court,"  etc. 
"If  this  order  of  pleading  be  inverted,  the  defendant  will 
be  precluded  from  pleading  any  matter  prior  in  point  of 
order."  {t) 

At  what  time  dilatory  pleas  must  he  pleaded. — All  pleas 
in  abatement,  (under  which  general  name  are  here  in- 
cluded pleas  to  the  jurisdiction  and  all  other  dilatory  pleas,) 
and  objections  of  that  nature,  must  be  interposed  at  the  first 
opportunity,  in  any  court,  whether  a  court  of  record  or 
not.  {ti)  It  is  too  late  to  plead  in  abatement  after  demurring 
to  the  declaration,  (z')  or  pleading  in  bar  of  the  action,  {w) 

(/)  I  Chit.  PI.  379. 

(«)  Breese,  135;  i  Scam.  266,  554;  4  Scam.  174,  561;  12  Ill._6i;  13  111. 
344,  570;  17  111.  199;  22  111.  140,  197;  26  111.  200;  32  111.  446;  35  111.  156, 
444;  41  111.  452;  53  111.  307;  7  Ind.   147,  447;  23  Tex.   177;  27  Geo.  172; 

44  Maine,  29,  77  111.  354,  74  111.  126;  90  111.  56. 

{v)   13  111.  344;  23  111.  69. 

(«;)   14  111.  277;  26  111.  200;  69  111.  665  ;   59  111.  491. 


ASSUMPSIT.  145 


Pleas  in  abatement — Premature  action. 


or  joining  in  error  (;r);  or  to  plead  to  the  jurisdiction  after  a 
motion  seeking  the  same  object  of  the  plea,  (jv)  or  after  the  de- 
fendant has  appeared,  and  moved  for  a  continuance.  (,3-)  Nor 
can  a  plea  in  abatement  be  pleaded  after  a  similar  plea  has 
been  stricken  from  the  files,  (a)  But  it  must  be  under- 
stood, that  the  defendant  is  not  bound  to  plead  at  all  until  the 
plaintiff  is  in  a  situation  to  compel  him  to  plead.  {/?) 

StaUitory,  etc.^  relating  to  pleas  in  abatement. — Section  4  of 
the  statute  in  relation  to  abatement,  declares  that, 

"  When  a  defendant  in  an  action  upon  contract,  express  or 
implied,  pleads  in  abatement  the  non-joinder  of  any  other  per- 
son as  defendant,  the  court  shall,  at  any  time  before  issue 
joined  on  such  plea,  allow  the  plaintiff  to  amend  his  declara 
tion,  by  inserting  therein  the  name  of  the  person  named  in 
such  plea,  and  declaring  against  him  jointly  with  the  original 
defendant."  {e) 

Premature  action. — A  defense  that  a  suit  was  begun  before 
the  claim  was  due,  should  be  set  up  by  plea  in  abatement^  and 
not  by  plea  in  bar.  (/)  Thus,  if  an  action  is  brought  in  viola- 
tion of  contract  to  extend  time  of  payment,  it  has  been   held, 

(r)  28  111.  423;  19  Bradw.  236, 
{y)  31  111.  306. 

(3)  28  111.  79;  8  Gray,  (Mass.)  79;  15  Graft.  (Va.)  122;  90  111.  56. 
(a)  41  111.  115;  I  Starr  &  v^urlis'  An.  Stat.  182. 
{b)  2  Scam.  257 ;  31  111.  306. 

(c)  I  Starr  &  Curtis'  An.  Stat.  181 ;  Rev.  Stat.  (1877)  93;  16  Bradw.  339. 
(/■)  77  III.  143;  Contra,  i  Bradw.  414;  71  111.  169. 
10 


146  ASSUMPSIT. 


Pleas  in  abatement — Amendments — Death  of  sole  plaintiff  or  defendant. 

that  is  a  defense  in  abatement  only  and  can  not  be  set  up  after 
pleading  in  bar.   [q) 

A  variance  between  a  summons  and  the  declaration  may  be 
taken  advantage  of  by  a  plea  in  abatement ;  (r)  and  can  only 
be  taken  advantage  of  by  such  plea,  or  by  motion  to  quash,  {s) 

Amendments  to  cure  matters  of  abatement. — By  section  3 
of  the  Abatement  Act,  it  is  provided  that, 

"  No  action  or  proceeding  shall  be  defeated  by  plea  in 
abatement,  if  the  defect  found  is  capable  of  amendment,  and 
is  amended  on  terms  prescribed  by  the  court."  (/■) 

A  variance  between  summons  and  declaration,  {?i)  mis- 
joinder, non-joinder  and  misnomer  can  be  cured  by  amend- 
ment. 

"  No  action,  proceeding  or  complaint,  in  law  or  equity, 
commenced  by  or  against  a  feme  sole,  either  alone  or  with 
others,  shall  abate  on  account  of  her  intermarriage  before 
final  judgment,  but  she  may  continue  to  prosecute  or  defend 
the  same  in  like  nianucr  as  if  she  were  sole."  iv) 

The  statute  provides  that  "  a  married  woman  may,  in  all 
cases,  sue  and  be  sued  without  joining  her  husband  with  her, 
to  the  same  extent  as  if  she  were  unmarried."  {zv) 

Death  of  sole  plaintiff  or  defendant. — By  the  common  law, 
the  death  of  a  sole  plaintiff  or  sole  defendant, /'tv/^/i'w/^ ///r, 
abates  the  suit ;  and  if  one  of  several  plaintiffs  die  pending 
the  suit,  it  will  in  most  cases  abate;  but  if  one  of  several 
defendants  die,  it  is  generally  no  cause  of  abatement,  but  the 
plaintiff  may  suggest  the  death  upon  the  record,  and  proceed  in 

(^)  9a  111.  91;  53  III.  307. 

(;-)  70  111.  281;  74  111.  126;   I  Chitty's  PI.  389;  Gould's  PI.  235;  69    III.   655. 
{s)  Breese,  331,  378;  II  111.  573;  17  111.  199,  529;  20  111.  46;  52  111.  i8o. 
(/)  I  Starr  &  Curtis'  An.  Stat.  181;   Rev.  Stat.  (1877)  93- 
{ti)  71  111.  375;  3  Scam.  45. 
(i/)  I  Starr  &  Curtis'  An.  Stat.  182. 

(w)  I  Starr  &  Curtis'  An.  Stat.  la'^g;  75  111.  159;  71  111.  475;  65  111.  129; 
66  111.  154,  401;  67  UL  I22j  68  111.  409;  2Q  Bradw.  543;  i6  Bradw'  199. 


ASSUMPSIT.  147 


Pleas  in  abatement — Death  of  sole  plaintiff  or  defendant. 


the  same  suit  against  the  survivors,  if  the  cause  of  action  is 
such  as  would  survive  against  them,  as  is  almost  universally 
the  case,  (-r)  But  by  statute,  however,  in  England,  and  gen- 
erally in  the  States  of  the  Union,  the  common  law  has  been 
modified  in  respect  to  the  abatement  of  suits  by  the  death  of 
parties,  and  provision  has  been  made  for  the  substitution  of 
the  representatives  of  such  deceased  parties,  in  all  cases 
where  the  cause  of  action  survives. 

Death  of  sole  plaintiff. — By  section  10  of  the  Abatement  Act, 
it  is  provided  that, 

"  Where  there  is  but  one  plaintiff,  petitioner  or  complainant 
in  an  action,  proceeding  or  complaint,  in  law  or  equity,  and 
he  shall  die  before  final  judgment  or  decree,  such  action, 
proceeding  or  complaint  shall  not  on  that  account  abate,  if 
the  cause  of  action  survive  to  the  heir,  devisee,  executor  or 
administrator  of  such  decedent,  but  any  of  such  to  whom  the 
cause  of  action  shall  survive,  may,  by  suggesting  such  death 
upon  the  record,  be  substituted  as  plaintiff,  petitioner  or  com- 
plainant, and  prosecute  the  same  as  in  other  cases."  (j) 

The  suggestion  of  death,  made  without  objection  from  the 
adverse  party,  and  an  order  allowing  substitution  of  names,  is 
prima  facie  proof  for  the  purposes  of  the  case  of  the  death  of 
the  original  plaintiff   {£) 

An  order  substituting  administrator  of  sole  plaintiff  is 
necessary,  {a)  But  entering  judgment  in  favor  of  a  dead 
person,  without  first  reviving  suit  in  the  name  of  his  repre- 
sentatives, is  not  such  an  error  as  requires  a  reversal  of  a 
judgment.  (/;) 

Death,  of  so le  defendant. — Section  ii  of  the  statute  in  rela- 
tion to  abatement,  provides  that, 

(jtr)  Gould's  PI.  246,  248. 

(/)  I  Starr  &  Curtis'  An.    Stat.  182;    Rev.  Stat,  (1S77)  94.     See  48  111.  243; 
79  I".  594;  "o  111.  372. 
(z)  108  U.  S.  32. 
(a)  17  111.  199;  66  III.  13, 
(6)  48  111.  243;  79  111.  594. 


148  ASSUMPSIT. 


Pleas  in  abatement — Death  of  parlies. 


"  When  there  is  but  one  defendant  in  an  action,  proceeding 
or  complaint,  in  law  or  equity,  and  he  dies  before  final  judg- 
ment or  decree,  such  action,  proceeding  or  complaint  shall 
not  on  that  account  abate,  if  it  might  be  originally  prosecuted 
against  the  heir,  devisee,  executor  or  administrator  of  such 
defendant;  but  the  plaintiff,  petitioner  or  complainant  may 
suggest  such  death  on  the  record,  and  shall,  by  order  of  the 
court,  have  suinmons  against  such  person  or  legal  representa- 
tive, requiring  him  to  appear  and  defend  the  action,  proceed- 
ing or  complaint,  after  which  it  may  proceed  as  if  it  had 
been  originally  commenced  against  him."  (c) 

The  representatives  of  a  deceased  defendant  will  not  be 
allowed  to  suggest  the  defendant's  death,  unless  he  submits 
himself  to  the  jurisdiction  of  the  court,  {d) 

Section  ii  applies  to  appeals  and  writs  of  error,  {v)  and  to 
attachment  suits.   {/) 

Several  parties — Death  of  part. — Where  there  are  several 
plaintiffs  or  defendants,  and  any  of  them  die  before  final  judg- 
ment, the  action  shall  not  abate,  but  the  death  miy  be 
suggested  and  the  cause  proceed  as  to  the  survivors,  {g) 

It  would  not  be  proper  to  join  administrator  of  deceased 
defendant  with  a  surviving  defendant,  {h) 

D eat Ji  of  all  on  one  side. — In  case  all  the  plaintiffs  or  all 
the  defendants  die,  the  cause  may  be  prosecuted  or  defended 
by  or  against  the  heir,  devisee  or  administrator,  to  or  against 
whom  the  cause  survives,  etc.   (/) 

Pleas  in  abatement —  When  to  be  verified. — The  first  section 
of  the  Abatement  Act  provides, 


(<■)  I  St.uT  &  Curtis'  An.  Stat.  183;  Rev.  Stat.  (1877)  94. 

{d)  102  III.  315.     See  III  111.  236. 

{e)  9  Bradw.  437. 

if)  19  111.  383. 

{g)  I  .-tarr  &  Curtis'  An.  Stat.  183;  Rev.  Stat.  (1877)  94;  79  111.  400. 

(//)  73  III.  194.     See  15  111.  13;  44  111.  io8. 

(/)   I  Starr  &  Curtis'  An.  Stat.  184;  Kev,  Stat.  (1877)  94. 


ASSUMPSIT.  149 


Pleas  in  abatement — Requisites — Judgment. 


"  That  no  plea  in  abatement,  other  than  a  plea  to  the  juris- 
diction of  the  court,  or  when  the  matters  relied  upon  to 
establish  the  truth  thereof  appear  of  record,  shall  be  admitted, 
unless  the  same  is  verified  by  the  affidavit  of  the  person  of- 
fering the  same,  or  of  some  other  person  for  him."  {J) 

Every  pleading  which  sets  up  matter  in  abatement  which 
does  not  appear  of  record  to  be  true,  must  be  verified  by 
affidavit;  and  if  not  so  verified,  should  be  stricken  from  the 
files  on  motion   {k) 

Where  a  vsummons  has  been  issued,  but  not  delivered  to 
the  sheriff  to  serve,  the  suit  does  not  thereby  abate.   (/) 

Requisites  of  picas  in  abatement. — Pleas  of  this  character 
are  required  to  be  full,  certain  and  formal  in  every  particular. 
Not  being  favored  by  courts,  because  of  their  dilatory  nature, 
they  are  not  aided  by  any  intendment,  {111)  and  can  not  be 
altered  or  amended,   iji) 

Judginent  upon  a  plea  in  ahatcnient. — In  ordinary  actions 
at  law,  in  courts  of  record,  the  judgment  on  the  finding  of 
the  issues  for  the  plaintiff,  upon  a  plea  in  abatement,  is  inter- 
locutory or  final,  according  to  the  nature  of  the  action.  If 
the  action  be  for  damages  in  assumpsit  or  in  tort,  it  is  inter- 
locutory. But  if  it  be  in  debt  for  a  sum  certain,  or  for  a 
specific  recovery  of  land  or  goods,  it  is  final.   {0) 

If  the  judgment  is  for  the  plaintiff  on  demurrer  to  the 
plea,  the  judgment  is  only  interlocutory,  quod  respondeat 
ouster.  (/>) 


(7)   I  Starr  &  Curtis'  An.  Stat.  177;  Rev.  Stat.  (1877)  93- 

[k)   102  111.  315;  89  111.  554;  23  III.  340;  41  III.  115;  66  111.  157. 

(/)  104  111.  71. 

{fii)  Tidd's  Pr.  639;  I  Chit.  PI.  395;  Gould's  PI.  75,  76;  22  111.  197  ;  25  Til. 
284,  486;  45  III.  296  ;  47  111.  444  ;  54  III.  361  ;  8  Mich.  500  ;  44  Maine,  482  ; 
57  111.  132  ;  68  111.  322  ;  90  111.  56  ;  89  111.  554 ;  93  II!.  77  ;  97  111.  620. 

(«)  I  Chit.  PL  405  ;  Gould's  PI.  236;  5  Wend.  72;  22  III.  197;  41  111.  115. 
See  83  111.  526. 

((?)  20  Bradw.  366;  2  Tidd's  Pr.  740;  Gould's  PI.  (4th  Ed.)  Ch.  5,  Sec.  159; 

(/)  I  Chit.  PI.  405;  Gould's  PI.  277;  3  Scam.  201 ;  i  Gilm.  395;  11  111.  573; 
1  Blackf.  3S8;  5  Blackf.  167. 


ISO  ASSUMPSIT. 


Pleas  in  abatement — Plea  to  jurisdiction. 

The  judgrnent  for  the  defendant  on  a  plea  in  abatement, 
whether  on  an  issue  of  fact  or  in  law,  is  that  the  writ  be 
quashed ;  (o)  or  if  a  temporary  disability  or  privilege  is 
pleaded,  that  the  plaint  remain  without  day,  until,  etc.  (/) 

Section  23  of  Illinois  ■practice-act. — The  law  in  respect 
to  abatement  and  amendment,  in  Illinois,  is  altered  and 
affected — but  to  what  extent  it  is  difficult  to  say — by  the 
section  above  quoted  (page  143)  of  the  practice-act  of  1872. 

No.  56.     Plea  to  the  jurisdiction. 

In  the Court. 

Term,  18 — . 

C.  D.  ^ 

ats.     >  Assumpsit. 

A.  B.  )  And  the  said  C.  D.,  in  his  own  person,  comes 
and  defends,  etc.,  and  says,  that  before  and  at  the  time  of 
the  commencement  of  the  said  action  of  the  said  A.  B.,  he 
the  said  C.  D.  was,  and  from  thence  hitherto  has  been,  and 

still  is,  residing  in  the  county  of ,  in  the  said  state  of 

Illinois,  and  not  in  the  said  county  of ;  and  that  he 

the  said  C.  D.  was  not  found  or  served  with  process  in  the 

said  action  in  the  said  county  of ,  but  was  found  and 

served  with  process  in  the  said  action  in  the  said  county  of 

:  And  this  he  is  ready  to  verif}^ ;  wherefore  he  prays 

judgment  if  the  court  here  will  take  cognizance  of  the  ac- 
tion aforesaid. 

C.  D. 

E.  F.,  Counsel. 

The  second  section  of  the  Illinois  practice-act  of  1872 
provides,  that  "  it  shall  not  be  lawful  for  any  plaintiff  to  sue 
any  defendant  out  of  the  county  where  the  latter  resides  or 
may  be  found,  except  in  local  actions,  and  except  that  in 

(<?)  I  Scam.  405;    Gould's  PI.  277;  I  Scam.  319;    2    Gilih.  69;    16  111.  306; 
20  111.  330;  58  111.  96. 
(/)   I  Chitty's  PI.  405. 
\q)    I  Chit.  PI.  394;    Gould's  PI.  276. 
(r)  3  Scam.  201. 


ASSUMPSIT. 


i^i 


Pleas  to  the  jurisdiction. 


every  species  of  personal  actions,  in  law,  where  there  is 
more  than  one  Sefendant,  the  plaintiff  commencing  his  ac- 
tion where  either  of  them  resides  may  have  a  writ  or  writs 
issued,  directed  to  any  county  or  counties  where  the  other 
defendants,  or  either  of  them,  may  be  found :  Provided^ 
that  if  a  verdict  shall  not  be  found,  or  judgment  rendered, 
against  the  defendant  or  defendants  resident  in  the  county 
where  the  action  is  commenced,  judgment  shall  not  be  ren- 
dered against  those  defendants  who  do  not  reside  in  the 
county,  unless  they  appear  and  defend  the  action."  {q) 

Unless  a  defendant,  when  sued  in  a  foreign  county,  in- 
sists upon  his  privilege,  in  apt  time,  by  a  plea  to  the  juris- 
diction, it  will  be  presumed  that  he  has  waived  his  right  to 
be  sued  in  his  own  county,  (r)  The  matter  is  not  plead- 
able in  bar,  (5)  nor  can  advantage  be  taken  thereof  by  a 
motion  to  dismiss,  {t)  or  on  demurrer,  or  writ  of  error,  [ii') 

Superior  courts  of  general  jurisdiction  (and  such  are  the 
circuit  courts  in  Illinois,)  (ty)  are  presumed  to  be  in  the 
proper  exercise  thereof,  until  the  contrar}^  is  shown  ;  and 
pleas  to  their  jurisdiction  must  set  forth  facts  showing  a 
want  of  jurisdiction,  and  must  be  certain  in  every  particu- 
lar, (w) 

A  plea  showing  that  a  defendant  has  been  sued  out  of  his 
county,  on  process  sent  to  his  county,  is  not  strictly  a  plea  in 
abatement,  but  a  meritorious  one  to  secure  a  substantial  right, 
and  if  defective  in  form  is  amendable,  [x) 

Pleas  to  the  jurisdiction  must  be  pleaded  in  person,  and 

{q)  Rev.  Stat.  (1874)  735  ;  Rev.  Stat.  (1877)  734;  76  111.  506;  77  111.  354. 
(r)   52  111.432;  69  111.  655. 
{s)   18  111.  292. 

(/)  22  111.  197  ;  49  111.  482.     But  see  88  111.  296. 
(«)48I11.  532. 
iv)  13  111.  432. 

(w)  Ibid. ;  25  111.  4S6;  36  111.  174;  49  111.  482  ;  4  R.  I.   no;   18  Ark.  236; 
I  Hemp.  215. 

(x)  88111.296;  83  111.  528. 


152  ASSUMPSIT. 


Pleas  in  abatement — Misnomer. 


not  by  attorney,  (y)  In  a  case  where  one  of  two  defend- 
ants signed  a  plea  of  this  kind  by  the  initials  of  his  given 
name,  it  was  held  insufficient ;  (z)  though  it  would  not  seem 
to  be  necessary  that  the  defendant  should  s/g-n  the  plea  at 
all,  but  merely  that  it  should  appear  to  be  pleaded  in  per- 
son. In  Illinois,  as  we  have  seen,  these  pleas  are  not  re- 
quired to  be  verified  by  affidavit,  {a)  They  should  conclude 
b}^  praying  judgment  "if  the  court  will  take  cognizance, 
etc.,"  and  not  "that  the  writ  be  quashed." (<^) 

It  is  not  necessary,  it  would  seem,  in  Illinois,  to  point  out 
in  the  plea  some  other  court,  in  which  the  defendant  ought 
to  be  sued,  since  the  courts  must  take  judicial  notice  of  the 
law,  which  establishes  certain  tribunals  in  every  county. 

See  further,  as  to  pleas  to  the  jurisdiction,  especially  of 
inferior  courts,  i  Chit.  PL  383-386,  and  Gould's  PL  216- 
223. 

J\^o.  57.     Plea  of  misnomer  of  defendant,    in   christian 

name. 

In  the Court. 

Term,  18—. 

C.  D.,  sued  by  the  name  of  E.  D.,  ^ 

ats.  >  Assumpsit. 

A.  B.  )     And  CD., (against 

whom  the  said  A.  B.  has  sued  out  his  said  writ  by  the  name 
of  E.  D.,)  in  his  own  person  comes  and  says,  that  he  is 
named  and  called  C.  D.,  and  by  that  name  and  that  sur- 
name has  always  hitherto  been  named  and  called ;  without 
this  that  he  the  said  C.  D.  now  is,  or  ever  was,  named  or 
called  by  the  name  of  E.,  as  by  the  said  writ  is  supposed  : 
And  this  he  the  said  C.  D.  is  ready  to  verify ;  wherefore  he 
prays  judgment  of  the  said  writ,  and  that  the  same  may 
be  quashed,  etc. 

C.  D. 
G.  H.,  Counsel. 

(_y)  I  Chit.  PI.  380;  Gould's  PI.  222;  22  111.  9. 
(«•)  22  111.  197. 

(c)  Ante,  req.  of  pleas  in  ab. ;  22  111.  z^T- 

{b)  I  Chit.  PI.  380;  Gould's  PI.  222;  83  111.  526.  See  71  111.  548;  88  111. 
296. 


ASSUMPSIT.  153 


Pleas  in  abatement — Misnomer. 


In  the Court. 

C.  D.,  sued  by  the  name  of  E.  D.,  ^ 

ats.  V  Assumpsit 

A.  B.  J        C.    D.,   the    de- 

fendant in  this  cause,  makes  oath  and  says,  thai  tlie  plea 
hereunto  annexed  is  true  in  substance  and  fact. 

C.  D. 
Subscribed  and  sworn,  etc. 

The  affidavit  must  be  positive  ;  {c)  it  is  not  sufficient  to 
say  "to  the  best  of  the  knowledge  and  belief"  of  the  af- 
fiant, {d)  It  is  said  that  the  affidavit  must  be  entitled  in 
the  cause  ;(«?)  but  in  Illinois  it  is  held  that  this  is  unneces- 
sary where  the  affidavit  is  written  on  the  same  piece  of  paper 
with  the  plea,  and  refers  to  it,  {/)  as  is  usually  the  case. 

The  above  form  of  plea  can  be  readily  adapted  to  the 
case  of  a  misnomer  of  the  defendant  as  to  his  surname. 
For  a  plea  of  misnomer  of  the  plaintiff,  see  3  Chit. PL  903. 

It  appears  advisable,  it  is  said,  to  plead  misnomer  of  the 
defendant  in  person,  and  that  coverture  of  the  defendant 
should  not  be  pleaded  by  attorney  ;  {g)  but  it  is  presumed 
that  all  pleas,  except  those  to  the  jurisdiction,  may  be 
pleaded  by  attorney. 

Misnomer  in  describing  one  of  two  defendants  can  not 
be  pleaded  by  the  other,    {h) 

If  the  right  name  was  used  in  the  writ,  but  the  defend- 
ant is  miscalled  in  the  declaration,  it  seems  the  latter  may 
be  amended.   (/) 

A  defendant  sued  by  his  given  name  alone  must  plead 
the  misnomer  in  abatement ;  and  if  it  is  not  so  pleaded  the 
objection  is  waived.   {J) 

(c)  I  Chit.  PI.  403. 

{d)  23  111.  340. 

(c)  I  Chit.  PI.  402, 

(/)4i  111.  115. 

isr)  3  Chit.  PI.  901,  o.  S)9,  n. 

{k)  I  Chit.  PI.  391 ;   Gould's  PL  340. 

(0  20  111.  46. 

(/)  32  111.  446;  69  111.  341  ;  71  111.  287.     See  6S  111.  322. 


154  ASSUMPSIT. 


Pleas  in  abatement — Misnomer. 


A  county  which  has  adopted  township  organization  can 
in  Illinois  only  be  sued  by  the  name  of  the  board  of  super- 
visors, and,  if  sued  otherwise,  it  is  not  necessary  to  plead 
the  matter  in  abatement.  The  capacity  of  a  county  to  be 
sued  is  only  given  by  special  statute,  and  the  statute  must 
be  followed,  (k)  But  generally  a  corporation  defendant 
can  not  take  advantage  of  a  misnomer  except  by  plea  in 
abatement ;  (/)  and  misnomer  of  a  corporation  plaintiff  is 
also  to  be  pleaded  in  abatement,  (w) 

If  the  misstatement  of  a  name,  in  suing  on  a  written 
contract,  causes  a  variance,  advantage  may  be  taken  of  it 
under  the  general  issue,  (n) 

A  defendant  can  not  plead  in  abatement  because  of  an  alias 
dictiis  added  to  his  name,  (t?)  An  initial  letter  between 
the  christian  name  and  surname  is  no  part  of  the  name,  and 
the  omission  of  it  does  not  cause  a  misnomer  or  variance.  (^) 

If  the  name  by  which  a  party  sues  or  is  sued  is  the  same 
in  sound  with  his  true  name,  there  is  no  misnomer.  In  the 
following  instances  it  was  held  that  the  rule  oi  idem  sonans 
applied:  Sinclair,  {or  St.  Clair;  {q)  Samuel  Headley, 
for  Samtiel  Headly,  yr.;  (r)  Little,  for  Lytle;  (5)  and 
McDonald,  for  McDonnell,  {t)  But  Schoonover  and 
Schoonhoven  are  not  the  same  ;  iiC)  and  it  will  not  be  pre- 
sumed, without  averment,  that  Bart  is  an  abbreviation  of 
Bartholo7new.  (v) 

Where  the  name  appears  to  be  a  foreign  one,  and  there 

(k)  31  111.  543;  4GiIm.  20. 

(/)  5  Mass.  97. 

(m)  I  Chit.  PI.  391 ;  30  111.  151. 

(w)  4  T.  R.  6n  ;  Chit,  on  Bills,  6th  ed.,  353;   i  Chit.  PI.  391,  ». 

(<?)  4  Johns.  1 18. 

(/)5johns.  84;  40  Maine,  438;  21  111.  242;  39  111.  457;  40  111.  116. 

(<7)  39  111.  125. 

(r)  39  111.  354. 

(5)  47  111.  423. 

(0  47  111-  533- 
(«)  20  111.  46. 
(f )  29  111.  508. 


ASSUMPSIT.  155 


Pleas  in  abatement — Misnomer — Replication. 


is  simpl}'^  a  variance  of  a  letter  which,  according  to  the 
pronunciation  of  the  language  to  which  the  name  belongs, 
does  not  vary  the  sound,  it  is  not  a  misnomer — as  Petri's, 
for  Petrie.  {tu)  Respecting  loreign  names,  it  is  said  that 
courts  should  be  slow  to  pronounce  that  a  variance,  unless 
obviously  so,  which  may  be  only  a  misspelling  or  mispro- 
nunciation ot  the  name,  {pc) 

The  plaintiff  may  traverse  the  plea  of  misnomer,  or  re- 
ply an  estoppel,  (j/)  or  that  the  defendant  is  known  as  well 
by  the  one  name  as  the  other,  {z)  It  seems  that  where  a 
misnomer  was  truly  pleaded,  the  plaintiff  might  amend 
his  declaration,  at  common  law,  and  the  suit  might  pro- 
ceed. («) 

No.  58.     Replication  to  JVo.  57*     Defendant  known   as 
well  by  one  name  as  the  other. 

In  the Court. 

Term,  18 — . 


Asstitn/psit. 

And  the  plaintiff  says,  that  the  said  writ,  by 
reason  of  anything  by  the  defendant  in  his  said  plea  above 
alleged,  ought  not  to  be  quashed,  (*)  because  he  says,  that 
the  defendant,  long  before  and  at  the  time  of  the  issuing  of 
the  said  writ,  was,  and  still  is,  called  and  known  as  well 
by  the  name  of  E.  D.  as  by  the  name  of  C.  D.  :  And  this 
the  plaintiff  prays  may  be  inquired  of  by  the  country,  etc. 

G.  H.,  Attorney  for  Plaintiff. 

In  a  case  where  the  plaintiff  sued  as  S.  S.  Farrington, 
and  the  defendant  pleaded  that  the  plaintiff's  name  was 
Samuel  S.  Farrington,  a  replication  that  he  was  known  as 
well,  etc.,  was  held  good,  {b) 

(w)  3  Caine,  219. 

(*)  41  111.  148. 

{y)  3  Chit.  PI.  1143. 

{z)  Id.  1 142;  Gould's  PI.  242;  20  111.  46;  21  111.  31;   I  Ohio,  6a 

{a)  I  Chit.  PI.  402. 

(J,)  21  III.  31. 


156  ASSUMPSIT. 


Pleas  in  abatement — Non-joinder,  etc. — Replication. 

A^o.  59.     Pica  of  noii-joinder  of  -pai'ty  as  defendant. 

In  the Court. 

Term,  18—. 


Assumpsit. 

And  the  said  C.  D.,  by  E.  F.,  his  attorney, 
comes  and  defends,  etc.,  and  prays  judgment  of  the  said 
writ,  because  he  says,  that  the  several  supposed  promises 
in  the  said  declaration  mentioned,  if  any  such  were  made, 
were,  and  each  of  them  was,  made  (*)  jointly  with  one  E. 
F.,  who  is  still  living,  and  not  by  the  said  C.  D.  alone: 
And  this  he  the  said  C.  D.  is  ready  to  verify  ;  wherefore, 
inasmuch  as  the  said  E.  F.  is  not  named  in  the  said  writ 
together  with  the  said  C.  D.,  he  the  said  C.  D.  prays  judg- 
ment of  the  said  writ,  and  that  the  sam-e  may  be  quashed, 
etc. 

E.  F.,  Attorney  for  Defendant. 
{Add  affidavit,  as  ante.  No.  57.) 

In  debt  on  simple  contract  the  form  may  be,  "that  the 
several  supposed  causes  of  action  in  the  said  declaration 
mentioned,  if  any  such  accrued,  and  each  of  them,  and 
every  part  thereof,  accrued  against  the  said  C.  D.  jointly  with 
one  E.  F.,  who  is  still  living,  and  not  against  the  said  C. 
D.  alone,"  etc. 

In  debt  on  bond,  the  plea  in  abatement  of  non-joinder 
craves  oyer  of  the  bond,  and  avers  that  the  party  omitted 
sealed  and  delivered  the  deed,  and  that  he  is  still  living,  {c) 

No.  60.     Replication  to  No.  59,  denying  that  promises 

were  made  jointly,  etc. 

(^As  in  No.  58,  ante,  to  the  asterisk:)  because  he  says, 
that  the  said  several  promises  were  not  made  by  the  de- 
fendant jointly  with  the  said  E.  F.,in  manner  and  form  as 
the  defendant  has  above  in  his  said  plea  alleged  :  And  this 
the  plaintift'  prays  may  be  inquired  of  by  the  country,  etc. 

J.  M.,  Attorney  for  Plaintiff. 

(c)  3  Chit.  PI.  901. 


ASSUMPSIT.  157 


Pleas  in  abatement — Non-joinder,  etc. 


The  plaintiff  may  deny  the  plea,  as  above,  or  he  may  re- 
ply that  the  person  not  joined  as  defendant  was  dead  at  the 
time  of  the  commencement  of  the  suit,  [d)  or  was  an  in- 
fant, or  a  married  woman  ;  (e)  or  if  there  is  in  fact  a  debt 
due  to  the  plaintiff  from  the  defendant  and  a  third  person 
jointly,  a  new  assignment  seems  proper,  and  sometimes  nec- 
essary, (ee) 

"  When  a  defendant  in  an  action  upon  contract,  express  or 
implied,  pleads  in  abatement  the  non-joinder  of  any  other  per- 
son as  defendant,  the  court  shall  at  any  before  issue  joined  on 
such  plea,  allow  the  plaintiff  to  amend  his  declaration  by  in- 
serting therein  the  name  of  the  person  named  in  such  plea,  and 
declaring  against  him  jointly  with  the  original  defendant."  (/") 

JVo.  61.      J-*/ca  of  non-joinde7'  of  f  arty  as  plaintiff . 

(As  m  JVo.  59,  ante,  to  the  asterisk:)  to  the  said  A.  B. 
and  one  E.  F.,  (who  is  still  living.)  jointly,  and  not  to  the 
said  A.  B.  alone  :  And  this  he  the  said  C.  D.  is  ready  to 
verify  ;  wherefore,  inasmuch  as  the  said  E.  F.  is  not  named 
in  the  said  writ  together  with  the  said  A.  B.,  he  the  said  C. 
D.  prays  judgment  of  the  said  writ,  and  that  the  same  may 
be  quashed,  etc. 

G.  H.,  Attorney  for  Defendant. 

{Add  affidavit^  as  ante,  A^o.  57.) 

The  plea  in  abatement  of  non-joinder  must  aver  that  the 
party  omitted  is  still  living  ;  ig)  and  if  the  defendant  pleads 
in  abatement  the  non-joinder  of  a  party,  and  it  turns  out 
that  there  are  other  joint  contractors  not  named  in  the  plea, 
the  defendant  will  not  succeed  thereon,  iji) 

The  non-joinder  of  a  party  who  ought  to  be  made  co- 
'plaintiff,  in  actions  on  contracts,  will  in  general  be  ground 
of  nonsuit,  and  need  not,  though  it  may,  be  pleaded  in 

(rf)  50  111.  132. 
(c)  I  Chit.  PI.  35. 

iee)  2  Swan's  Pr.  650,  a;  i  Esp.  452. 

(/)  Rev.  Stat.  (1877)  93,  737.     Sec  12  111.  462. 

(^)  I  Chit.  PI.  392- 

(Ji)  I  Chit.  PI.  33;  2  Bla.  951;  2  Marsh.  302;  27  Cot.n.  42. 


158  ASSUMPSIT. 


Pleas  in  abatement — Misjoinder. 


abatement ;  (?*)  but  in  the  case  of  executors  and  other" 
suing  in  right  of  representation,  the  omission  can  only  b, 
pleaded  in  abatement.  {J)  If  it  appears  from  the  plaint- 
iff's own  pleadings  that  there  are  other  persons  who  ought 
to  be,  but  are  not,  made  plaintiffs,  (or,  in  an  action  on  a 
specialty,  if  this  is  made  to  appear,  by  craving  oyer,)  the 
defendant  may  avail  himself  of  the  omission  on  demurrer,  or 
motion  in  arrest,  or  on  error,  (k)  In  actions  ex  delicto, 
however,  the  non-joinder  of  a  person  as  plaintiff  must  be 
pleaded  in  abatement ;  otherwise  no  advantage  can  be 
taken  of  it  except  in  mitigation  of  damages.  (/)  But  in 
Illinois,  in  debt,  on  the  statute,  for  cutting  trees,  etc.,  all 
the  owners  of  the  land  must  join,  and  the  defendant  is  not 
required  to  plead  a  non-joinder  of  them  in  abatement,  {m) 
With  regard  to  defendants,  the  omission  of  a  joint  con- 
tractor must  be  pleaded  in  abatement,  {n)  If  however  it 
expressly  appears  on  the  face  of  some  pleading  on  the  part 
of  the  plaintiff  that  the  person  omitted  is  still  living,  as 
well  as  that  he  jointly  contracted,  the  defendant  may  demur, 
or  move  in  arrest,  or  sustain  a  writ  of  error,  {o)  In  actions 
for  torts,  no  advantage  can  in  general  be  taken  of  a  non- 
joinder of  persons  as  defendants,  {f) 

No.  62 .    Blisjoinder  of\defendant — Plea  by  one  defendant. 

In  the Court. 

Term,  18—. 

C.  D.  and  E.  F.    ^ 

ats.  >  Assumj>sit. 

A.  B.  )     And  the  said  E.  F.,  by  G.  H.,  his 

attorney,  comes  and  defends,  etc.,  and  prays  judgment  of 

(0  I  Chit.  PI.  8-392 . 
(;■)  I  Chit.  PI.  392,  393;  Gould's  PI.  257. 
(^k)  1  Chit.  PI.  7,  8;  Gould's  PI.  256. 

(/)  Gould's  PI.  257,  258;  I  Chit.  PI.  393;  II  111.  22;  17  111.  302. 
(tn)  II  111.  22. 

(«)  I  Chit.  PI.  32,  393;  Gould's  PI.  255;   I  Scam.  557;   16  111.  369;  18  111. 
37  ;  50  111.  132  ;  67  111.  207,  317. 

(o)  I  Chit.  PI.  32;   16  [11.  369.     -^5  to  fresumj).,  see  Gould's  PI.  260. 
iP)  I  Chit.  PI.  75,  393;  Gould's  PI.  261. 


ASSUMPSIT.  159 


Pleas  in  abatement — Misjoinder. 


the  said  writ,  because  he  says,  that  the  several  supposed 
promises  in  the  said  declaration  mentioned,  if  any  such 
were  made,  were,  and  each  of  them  was,  made  by  the  said 
C.  D.  alone,  and  not  by  the  said  KIF.  jointly  with  the  said 
C.  D.  :  And  this  he  the  said  E.  F.  is  ready  to  verify ;  where- 
fore he  prays  judgment  of  the  said  writ,  and  that  the  same 
may  be  quashed,  etc. 

G.  H.,  Attorney  for  E.  F. 
{Add  affidavit,  as  ante,  No.  57.) 

As  to  a  misjoinder  of  plaintiffs  or  defendants,  in  actions 
on  contracts,  at  common  law  advantage  may  be  taken  of 
the  mistake  as  well  under  the  general  issue  as  by  plea  in 
abatement;  {q)  and  this  is  the  law  in  Illinois,  as  regards 
■plaintiffs,  (r)  In  respect  to  defendants,  the  statute  now 
in  force  in  Illinois  provides,  that  "in  actions  upon  contracts, 
express  or  implied,  against  two  or  more  defendants,  as  part- 
ners or  joint  obligors  or  payors,  -whether  so  alleged  or  not, 
proof  of  the  joint  liability  or  partnership  of  the  defendants, 
or  their  christian  or  surnames,  shall  not,  in  the  first  instance, 
be  required  to  entitle  the  plaintiff  to  judgment,  unless  such 
proof  shall  be  rendered  necessary  by  pleading  in  abate- 
ment, or  unless  the  defendant  shall  file  a  plea  in  bar  deny- 
ing the  -partnership  or  joint  liability  or  the  execution  of 
the  instrument  sued  upon,  verified  by  affidavit."  (5)  This 
enactment  differs,  in  the  respects  indicated  by  the  words  in 
italics,  from  the  former  law,  under  which  all  the  cases  on 
this  subject  heretofore  adjudged  were  decided,  {t)  As 
therefore  the  partnership  or  joint  liability  of  the  defendants 
can  now  be  put  in  issue  by  a  plea  in  bar ;  and  as  there  is  a 
difficulty  in  pleading  a  misjoinder  of  defendants  in  abate- 
ment— since  though  a  party  may  well  by  his  sworn  plea 
deny  that  he  made  the  alleged  promises  jointly  with  an- 
other, it  may  often  be  impossible  for  him  to  say  on  oath 

.    {q)  Gould's  PI.  255,  260;    as  to  nonsuit,  I  Chit.  PL  8,  34;  78  111.  234. 
(r)   Rev.  Stat.  (1877)  130;  43  111.  323;  32  111.  489. 
{s)  Rev.  Stat.  (1874)  779;  Rev.  Stat.  (1877)  738;  78  111.  205. 
(/)  2  Gilm.  715  ;   12  111.  124;  21  111.  524;  23  111.  340;  37  111.  76. 


i6o  ASSUMPSIT. 


Pleas  in  abatement — Another  action  pending,  etc. — Replication. 

who  did  make  them,  and  thus  to  give  the  plaintiff  a  better 
writ  — it  is  presumed  that  such  misjoinder  will  seldom  be 
pleaded  in  abatement. 

In  actions  for  torts ^  advantage  of  a  misjoinder  of  flaint- 
iffs  may  also  be  taken  either  by  plea  in  abatement  or  under 
the  general  issue  ;  {ii)  but  if  several  persons  are  sued  for  a 
lort  committed  by  one  of  them  only,  no  advantage  can  be 
taken  of  it,  as  a  misjoinder,  in  any  way.  {y) 

No.  61^.     Pica  of  another  actioti  fending  for  same  cause. 

In  the Court. 

Term,  18 — . 

CD.  ^ 

ats.     >  Assumpsit. 

A.  B  )  And  the  said  C.  D.,  by  G.  H.,  his  attorney, 
comes  and  defends,  etc.,  and  prays  judgment  of  the  said 
writ,  because  he  says,  that  before  the  commencement  of 

this  suit,  to  wit,  on  the day  of ,  in  the  year  18 — , 

the  said  A.  B.  impleaded  the  said  C.  D.  in  the  said 

Court  of  the  said  county  of ,  in  the  state  of  Illinois 

aforesaid,  in  a  certain  plea  of  trespass  on  the  case  on  the 
very  same  promises  in  the  said  declaration  in  this  present 
suit  mentioned  ;  as  by  the  record  thereof  remaining  in  the 
court  last  aforesaid  more  fully  appears  :  And  the  said  C. 
D.  further  says,  that  the  parties  in  this  and  the  said  former 
suit  are  the  same,  and  not  other  or  different  persons,  and 
that  the  said  former  suit  is  still  pending  in  the  court  last 
aforesaid.  And  this  he  the  said  C.  D.  is  ready  to  verify; 
wherefore  he  prays  judgment  of  the  said  writ  in  this  suit, 
and  that  the  same  may  be  quashed,  etc. 

G.   H.,  Attorney  for  Defendant. 

(Add  affidavit,  as  ante.  No.  57.) 

No.  64.     Replication  to  No.  6"^^ — Nul  tiel  record. 

{As  in  No.  58,  ante,  to  the  asterisk:)  because  he  says, 
that  there  is  not  any  record  of  the  said  supposed  former  suit 

remaining  in  the  said court  of  the  said  county  of , 

in  manner  and  form  as  the  said  C.  D.  has  above  in  his  said 

(«)  Gould's  PI.  258;  see  i  Chit.  PI.  55;  32  111.  4S9. 

(v)  I  Chit.  PI.  74;  Gould's  PI.  261;  42  111.  73;  45  111.  145. 


ASSUMPSIT.  i6i 


Pleas  in  abatement — Another  action  pending,  etc. — New  assignment. 

plea  alleged :  And  this  the  plaintiff  is  read}-  to  verify, 
when,  where  and  in  such  manner  as  the  court  here  shall 
order,  etc. 

L.  M.,  Attorney  for  Plaintiff. 

The  plaintiff  may  reply  mil  ticl  record,  as  above  ;  or,  if 
there  is  in  truth  another  suit  pending  between  the  same 
parties  for  a  cause  of  action  similar  to  that  mentioned  in  the 
declaration,  it  would  seem  proper  that  the  plaintiff  should 
new  assign — as  in  the  following  form — that  he  is  suing  for 
a  different  cause  of  action,  [w) 

A^o.  65.     Rcflication  to  No.  63 — Kezv  assignment^  that 
suit  is  for  different  causes  of  action. 

{As  in  JVo.  58,  ante,  to  the  asterisk:^  because  he  says, 
that  he  sued  out  his  said  writ,  against  the  defendant,  and 
declared  thereon,  not  for  the  non-performance  of  the  prom- 
i.ses  in  the  said  plea  mentioned,  and  in  respect  whereof  the 
supposed  former  suit  therein  also  mentioned  is  so  pending 
as  atbresaid,  but  for  the  non-performance  of  other  and  dif- 
ferent promises  made  by  the  defendant  to  the  plaintiff  in 
manner  and  form  as  he  has  above  thereof  complained 
against  the  defendant :  And  this  the  plaintiff  is  ready  to 
\  crify  ;  wherefore,  etc.,  he  prays  judgment,  etc. 

L.  M.,  Attorney  for  Plaintiff. 

The  pendency  of  a  proceeding  under  the  mechanic's  lien 
law  of  Illinois,  («)  or  of  a  prior  suit  by  attachment,  can  not 
be^  pleaded  in  abatement  of  a  suit  in  personam  for  the  same 
debt,  unless,  in  the  latter  case,  the  plea  shows  that  the  de- 
fendant was  personally  a  party  to  the  suit ;  {b)  nor  can  the 
pendency  of  a  suit  in  one  state  be  pleaded  in  abatement  of 
a  second  action  for  the  same  matter  in  another  state,  {c) 
In  England,  the  pendency  of  a  prior  action  in  an  inferior 


(w)  2  Swan's  Pr.  652,  a.     See  i  Esp.  452. 
{a)  3  Scam.  201  ;  75  111.  385. 
(^b)  3  Gilm.  128;  7  Verm.  123;  8  Mass.  456. 

(<r)   13  lU.  486;  31  Barb.  (N.  Y.)  364;    10  Tick.  470;  9  Johns.  221;   12  lb. 
99;  69  111.  665. 

II 


i62  ASSUMPSIT. 


Pleas  in  abatement — Another  action  pending,  etc. 

court  can  not  be  pleaded  in  abatement  of  an  action  brought 
in  one  of  the  superior  courts,  {d) 

A  writ  of  error,  operating  as  a  supersedeas^  is  pleadable 
in  abatement  of  another  action,  (r)  but  not  if  the  writ  was 
sued  out  after  the  commencement  of  such  other  action,  (y^ 
When  a  second  suit  is  commenced  after  a  writ  of  error, 
operating  as  a  supersedeas,  has  been  sued  out,  the  court  in 
which  the  second  action  is  pending  will,  on  application, 
stay  the  proceedings  until  the  determination  of  the  writ  of 
error,  {g) 

A  subsequent  suit  may  be  abated  by  an  allegation  of  the 
pendency  of  a  prior  suit,  but  the  reverse  of  the  proposition 
does  not  hold  in  personal  actions.  {Ji) 

To  entitle  a  defendant  to  plead  another  action  pending, 
it  is  not  always  necessary  that  both  actions  should  be  be- 
tween the  same  parties ;  it  is  sometimes  enough  if  the  sub- 
ject-matter is  the  same.  (  i') 

A  suit  to  recover  the  price  of  goods  sold,  and  another  to 
recover  the  goods  on  the  ground  of  fraud  on  the  part  of  the 
vendee,  can  not  be  maintained  at  the  same  time,  (y) 

The  plea  of  another  action  pending  must  aver  that  it  is 
still  pending  at  the  time  of  the  plea  pleaded,  {k)  There  are 
decisions  to  the  contrary ;  (/)  but  this  is  the  rule  in  Illi- 
nois, and  it  is  said  to  rest  on  the  better  reasoning  and  au- 
thority, (w) 

(<f)  I  Chit.  PI.  393;   Gould's  PI.  266. 

(e)  3  Gilm.  49S;  2  Johns.  343;   i  Ld.  Raym.  47. 

(/)  Ibid. ;  13  111.  ^86;  i  Wheat.  215. 

^S)  3  Gilm.  498;   I  Tidd's  Pr.  530;   i  Stra.  419;   i  Wils.  120. 

(//)  I  Wheat.  215;   2  Johns.  342;   11  Tex.  259;    13  Wis.  84. 

(/)  2  Gilm.  707;  Gould's  PI.  263,  265. 

(/)  8  Cal.  206. 

{k)  3  Chit.  PI.  905;  2  Gilm.  252,  259;  10  Cal.  233,  522;  i  Mass.  495;  note 
to  5  Mass.  179;  I  Ld.  Raym.  274;  2  lb.  1014,  S.  C. ;  i  Salk.  329;  1  Went. 
8 ;  I  Johns.  397 ;  Doug.  240. 

(/)  5  Mnss.  179;  2  N.  H.  36;   29  Conn.  515;   3  D^ia,  I57. 

{in)  2  Gdm.  259;  114  III.  611;  97  111   620;  8  Bradw.  263. 


ASSUMPSIT.  1 6; 


Pleas  in  bar — General  issue. 


The  defendant  may  demur  when  it  appears  on  the  face 
of  the  papers  that  there  is  another  action  for  the  same  cause 
j>ending  between  the  same  parties,   {ii) 

The  plaintiff  can  not,  after  a  plea  of  a  prior  action  pend- 
ing, avoid  the  effect  of  the  plea  by  discontinuing  the  prior 
action.  (<?) 

Proof  by  the  defendant  of  the  issuing  of  a  writ  for  the 
same  cause  of  action  shows  ^rinia  facie  the  pendency  of 
another  suit,  and  shifts  the  burden  of  proof  on  the  plaint- 

The  injustice  of  entertaining  two  suits  against  the  same 
party  at  the  same  time,  for  the  same  cause  of  action,  is  so 
glaring  as  to  'give  to  a  plea  of  another  action  pending  a 
more  favorable  position  than  one  merely  dilatory ;  still  the 
pleader  must  not  neglect  any  of  the  essential  requirements 
of  the  law.  {q) 

III.    PLEAS  IN  BAR. 

A  plea  in  bar  is  one  that  impugns  the  right  of  action 
altogether ;  it  is  a  substantial  and  conclusive  answer  to  the 
action.  It  must  either  deny  all  or  some  material  part  of 
the  averments  of  fact  in  the  declaration,  or,  admitting  them 
to  be  true,  allege  new  facts  which  obviate  and  repel  their 
legal  effect.  Pleas  in  bar  are  divided  into  ■pleas  by  way  of 
traverse,  or  denial,  and  pleas  by  luay  of  confession  and 
avoidance. 

The  most  usual  plea  by  way  of  traverse,  in  the  action 
of  assumpsit,  is  what  is  called  the  general  issue — non 
assumpsit — which  imports  a  general  denial  of  all  the  ma- 
terial allegations  in  the  declaration. 

The  declaration  in  an  action  of  assumpsit  states  that  the 

(w)  I  Met.  (Ky.)  97. 

((?)  I  Chit.  PI.  394;   I  Snlk.  329;  2  Ld.  Raym    toi\,  S.  C. ;  5  Mats.  17+. 
But  see  i  Johns.  397;  6  Seld.  i^N.  Y.)  500. 
(/)  I  Hemp.  213. 
(y)  54  111.  361. 


164  ASSUMPSIT. 


Pleas  in  bar — General  issue. 


defendant,  upon  a  certain  consideration  set  forth,  made  a 
certain  promise  to  the  plaintiff.  The  plea  of  non  asstiu/pstt, 
or  general  issue,  states  that  the  defendant  "  did  not  promise 
in  manner  and  form,"  etc.  It  would  seem  at  first  glance 
that  this  only  put  in  issue  the  promise  as  alleged  in  the 
declaration.  A  much  wider  effect,  however,  is  given  to 
this  plea.  The  law  will  always  im^ly  a  promise  in  con- 
sideration of  an  existing  debt  or  liability  ;  and  this  action 
may  consequently,  as  we  have  seen,  be  founded  upon  an 
iin^lied  promise,  as  well  as  upon  one  expressed.  When 
the  promise  relied  on  is  an  implied  one,  and  the  plea  of 
no7i-asstnnpsit  is  interposed,  the  plaintiff  must  prove  on 
the  trial  the  liability  from  which  the  implied  promise 
arises ;  and  in  such  case  it  is  proper  that  the  defendant 
should,  under  his  plea  denying  the  promise,  be  permitted 
to  show  any  circumstance  by  which  the  liability  is  dis- 
proved. This  plea  puts  in  issue  the  contract  or  promise, 
as  stated  in  the  plaintiff's  declaration,  and  enables  the  de- 
fendant to  show  that  he  never  in  fact  contracted  at  all ;  and, 
also,  that  he  did  not  contract  in  the  manner  stated  in  the 
declaration,  and  thus  to  take  advantage  of  any  material 
variance. 

A  special  plea  which  simply  traverses  a  portion  of  the 
facts  which  the  plaintiff  is  bound  to  prove  in  order  to  es- 
tablish prima  facie  a  right  to  recover  under  his  declara- 
tion, is  bad  as  amounting  to  the  general  issue  ;  {a)  and 
when  the  general  issue  and  special  pleas  are  pleaded,  and 
the  matter  of  the  special  pleas  can  be  given  in  evidence 
under  the  general  issue,  the  special  pleas  are  obnoxious  to 
a  special  demurrer,  {b)  and  may  be  stricken  from  the  files,  {c) 
even  after  a  general  demurrer  thereto  has  been  overruled,  {d) 

The  plea  of  the  general  issue  compels  the  plaintiff  to 


(«)  33  111.  308;  34  111.  389;  35  111.  518;  97  111.  102. 

[b)  44  111.  129;  48  111.  492;   109  111.  47. 
{c)  44  111.  129. 
{d)  34  111.  3S9. 


ASSUMPSIT.  16=^ 


Pleas  in  bar — General  issue. 


prove  every  essential  averment  in  his  declaration  that  goes 
to  make  up  the  liability  of  the  defendant.  (^)  Under  this 
plea,  however,  the  character  in  which  the  plaintiff'  sues  is 
admitted.  {/)  If  the  suit  is  brought  by  a  corporation,  the 
defendant,  by  pleading  the  general  issue,  admits  the  plaint- 
ift^'s  right  and  capacity  to  sue  ;  if  he  wishes  to  deny  the 
existence  of  the  corporation,  he  should  put  in  a  plea  for 
that  purpose,  {g) 

Evidence  tending  to  prove  payment  may  be  given  in  evi- 
dence under  the  general  issue,  (^h) 

If  the  fact  of  usury  appears  by  the  declaration,  it  need 
not  be  specially  pleaded ;  (/)  and  the  same  is  true  in  some 
cases  of  the  defense  of  the  statute  of  limitations.  {J) 

The  non-joinder  of  a  party  as  plaintiti'  may  also  be 
shown  under  the  general  issue.  {j'J) 

When  the  defendant  desires  to  put  in  issue  the  execution 
of  a  note,  or  other  instrument  specially  declared  on,  it  would 
seem  that  the  plea  of  non  assttm^sit,  verified  by  affidavit, 
is  the  proper  plea  under  the  statute  of  Illinois,  {k) 

It  is  not  competent  under  the  general  issue  to  show  a 
total  or  partial  failure  of  the  consideration  of  a  promissory 
note.  (/) 

Matters  arising  after  an  action  is  commenced,  can  not  be 
given  in  evidence  under  the  general  issue.  (;;/) 

Under  the  general  issue  in   assumpsit,  the  defendant's 

(e)  5  Mass.  43S;  i  Mann.  (Mich.)  239;  16  Ind.  341;  23  111.  94;  30  111. 
413;  34  111-  3S9;  48  111-  410-     See  43  III.  134. 

{/)  I  Scam.  64;  4  Blackf.  469;   16  Maine,  242;  38  Maine,  343;   14  Aia. 

5"- 

{g)  5  Gilm.  48;   14  Ala.  511 ;  38  Maine.  343. 
{k\  16  111.  21 ;  I  Hemp.  558,  12. 
[i)  50  111.  270. 
0)48111.  118. 

07)  33  111- 476. 

ik)  3  Scam.  18S;  12  111.  124;  21  111.  524.  See  2  Gilm.  715;  29  111.  83; 
78  111.  234. 

(/)  17  111.  475  ;  38  III.  303.  See  2  Scam.  507.  60  111.  15S  ;  89  111.  113. 
(w)  13  Mass.  572. 


i66  ASSUMPSIT. 


Pleas  in  bar — General  issue — Affidavit  of  merits. 

coverture  at  the  time  of  making  the  contract  may  be  given 
in  evidence.  {7i) 

No.  66.     Pica  of  non  assumpsit. 

In  the Court. 

Term,  i8 — . 

C.  D.  ^ 

ats.  >^  Assumpsit. 
A.  B.  }  And  the  defendant,  by  E.  F.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  he  did  not  promise  in  manner  and  form  as  the 
plaintiti'  has  above  thereof  compLained  against  him  ;  and 
of  this  he  puts  himself  upon  the  country,  etc. 

Affidavit  of  merits. 

In  llhnois,  where  the  plaintiff  files  with  his  declaration  an 
affidavit  of  his  claim,  the  defendant  must  file  with  his  plea  an 
affidavit  of  merits ;  (<?)  and  for  want  of  such  affidavit  the  plea 
will  be  stricken  from  the  files,  [p)  If  the  affidavit  is  defective, 
the  court,  in  its  discretion,  may  grant  leave  to  amend,  upon 
terms,  such  as  showing  a  meritorious  defense,  {(j) 

The  statute  has  not  made  it  obligatory  on  the  defendant  to 
set  out  in  detail  his  defense  in  an  affidavit  of  merits  filed  with 
his  pleas,  (r) 

An  affidavit  which  states  that  the  defendant  has  a  good  and 
valid  defense  to  the  whole  of  the  plaintiff's  demand  upon  the 
merits,  as  he  verily  believes,  is  a  sufficient  compliance  w^th 
the  requirements  of  the  statutes.  If  it  meets  all  the  sub- 
stantial requirements  of  the  statute  it  will  be  sufficient,  al- 
though not  in  its  precise  words,  {s) 

i^n)  41  Maine,  241;  43  II!.  155;  i  Chit.  PI.  38S,  417. 

(o)  Ante,  55  ;  Rev.  Stat.  (1877)  739;  86  111.  1 1  ;  80  111.  492. 

(/.)  72  111.  loi  ;  74  111.  44,  106 ;  86  111.  57  ;  78  111.  605  ;  89  III.  606. 

{q)   87  111.  103;  84  111.  18;  8^  111.  556;  76  111.  321;  90  111.  91. 

(;-)  86  111.  58;  84  111.  18,  27^';  83  111.  239. 

{s)   79  111.  482;  83  111.  I.91,  239  J  84  111.  18,  272. 


ASSUMPSIT.  167 


Pleas  in  bar — General  issue — Affidavit  of  merits — Notice. 


The  evident  purpose  of  the  statute  is  to  facilitate  the  col- 
lection of  debts,  by  cutting  off  pleas  which  are  without 
foundation  in  fact,  and  are  interposed  merely  for  delay. 

If  the  defendant  attempts  to  state  the  facts  of  his  defense, 
and  they  are  insufficient,  the  affidavit  will  be  bad,  and  may  be 
stricken  from  the  files.  (/) 

No.  67.     Affidavit   of  merits,  to  be  filed  zvith  pica. 
{Title  of  court  and  case.) 

C.  D.  makes  oath  and  says,  he  is  the  defendant  in  the  above 
entitled  cause,  and  that  he  verily  believes  that  he  has  a  good 
defense  to  (*)  this  suit,  upon  the  merits,  to  the  whole  of  the 
plaintiff's  demand.  C.  D. 

{Add  jurat.) 

The  affidavit  ma^^  be  sworn  to  by  one  of  several  defend- 
ants pleading  jointly,   [ii) 

If  the  defense  is  only  to  a  part  of  the  demand,  the  affidavit 
may  be  as  in  the  above  form  to  the  asterisks,  and  will  then 
proceed  thus : 

"A  part  of  the  plaintiff's  demand,  which  said  part  amounts 

to  dollars,  dollars,  according    to  the    best  of  his 

judgment  and  belief" 

An  affidavit  stating  that  the  defendant  has  a  good  defense  as 
to  all  of  the  plaintiff's  demand,  except  a  certain  sum  named, 
is  a  virtual  admission  that  the  sum  thus  excepted  is  due  to  the 
plaintiff  {v)  And  he  may  take  judgment,  therefore,  regardless 
of  pleas  to  the  whole  cause  of  action.  [%u) 

General  issue.,  with  notice  of  special  matters. 
The  statute  of  Illinois  provides,  that  "the  defendant  may  " 
plead  as  many  matters  of  fact  in  several  pleas  as  he  may 

(/)  83  111.  91,  556. 

(")  79  111-  531- 
{v)  86  111.  263. 
{w)  83  111.  461,  2S9;  69  111.  655;  71  111.  226. 


iC8  ASSUMPSIT. 


Pleas  in  bar — Notice  of  set-oft",  under  general  issue. 

deem  necessary  for  his  defense,  or  may  plead  the  general 
issue,  and  give  notice  in  writing  under  the  same  ol  the 
special  matters  intended  to  be  relied  on  for  a  defense  on  the 
trial ;  under  which  notice,  if  adjudged  by  the  court  to  be 
sufficiently  clear  and  explicit,  the  defendant  shall  be  per- 
mitted to  give  evidence  of  the  facts  therein  stated,  as  if  the 
same  had  been  specially  pleaded,  and  issue  taken  there- 
on ;" — and  that  "the  defendant  in  any  action  brought  upon 
any  contract  or  agreement,  either  expressed  or  implied, 
having  claims  or  demands  against  the  plaintiff  in  such  ac- 
tion, may  plead  the  same,  or  give  notice  thereof  under  the 
general  issue,  or  under  the  plea  of  payment,  {q) 


]Vo.  6S.     Notice  of  sei-off,  ziiidcr  general  t'sstie. 
Court. 


Assumpsit. 

The  plaintiff  will  take  notice,  that  on  the  trial 
of  this  cause  the  defendant  will  give  in  evidence,  and  in- 
sist, that  the  plaintiff'  was  before  and  at  the  time  of  the 
commencement  of  this  suit,  and  still  is,  indebted  to  the  de- 
fendant in  the  sum  of dollars,  for  {here  state  the  mat- 
ter or  matters  of  set-off ,  precisely  as  in  a  plea; — demands 
such  as  would  be  recoverable  under  common  counts  may  be 
set  forth  as  in  such  counts^  or  as  in  the  consolidated  com- 
mon counts  ; — )  and  that  on  such  trial  the  defendant  will  set 
off  and  allow  to  the  plaintiff",  against  any  demand  on  his 
part  to  be  proved  on  such  trial,  so  much  of  the  said  sum  {or 
"sums")  of  money  so  due  from  him  to  the  defendant  as 
will  be  sufficient  to  satisfy  and  discharge  such  demand. 

Dated  this day  of ,  i8 — . 

E.  F.,  Attorney  for  Defendant. 

The  commencement  of  this  form  may  be  used  in  notices 
of  any  other  matters  of  defense. 

In  practice,  the  notice  is  written  by  the  pleader  at  the 
foot  of  the  plea  or  pleas,  and  is  not  served  on  the  plaintiff. 

{,j)   Rev.  Stat.  (1874)  77S ;  Rev.  Stat,  (1877)  738. 


ASSUMPSIT.  169 


General  issue  and  notice. 


It  is  said  that  the  notice  of  set-oiT  should,  in  point  of  form, 
be  as  certain  as  a  declaration,  (r) 

By  the  statute  of  Illinois,  the  defendant  is  required  to  file 
with  his  plea  or  notice  of  set-off  a  copy  of  the  instrument 
or  account  upon  which  he  intends  to  rely.  After  such  plea 
or  notice  has  been  interposed,  the  plaintiff  can  not  dismiss 
his  suit  without  the  consent  of  the  defendant,  or  leave  o.. 
the  court.  (5)  ^ 

It  is  only  when  evidence  is  offered  under  a  notice,  that 
the  sufficiency  of  the  notice  can  be  tested  ;  and  if  the  mat- 
ters stated  therein  do  not  constitute  a  defense  to  the  action, 
the  evidence  offered  will  be  excluded.  No  issue  of  law  or 
fact  can  be  formed  on  the  notice.  (/?)  It  is  strongly  inti- 
mated, however,  in  one  of  the  cases  noted,  (29  111.  8^,)  that 
the  sufficiency  of  the  notice  is  a  preliminary  question,  which 
ought  to  be  raised  by  demurrer. 

Where  a  notice  filed  with  the  general  issue  is  mcon- 
sistent,  or  indefinite  and  uncertain,  it  may  be  stricken  from 
the  files,  (n) 

A  special  notice  should  apprise  the  plaintiff  with  reason- 
able certainty  of  the  matter  of  defense,  so  that  he  may  not 
be  taken  by  surprise  on  the  trial,  {v) 

The  general  issue,  with  notice  of  special  matter,  and 
special  pleas,  can  not  be  pleaded  at  the  same  time  ;  and  if 
this  is  attempted  to  be  done,  the  pleas  may  be  stricken  from 
the  files,  (iv) 

A  partial  failure  of  consideration  can  not  be  given  in 
evidence  under  the  general  issue  and  a  notice  of  set-off  and 
of  total  failure  of  consideration,  (x) 

When  the   general   issue    is  pleaded,  with  a  notice  of 

(r)  Bui.  Ni.  Pri.  179. 

{s)  Rev.  Stat.  (1874)  77S;   Rev.  Stat.  (1877)  738;  72  111.  370. 

(^)  II  111.  zS;  16  111.  2S3;  29  111.  83.     See  16  111.  296;  24  11.  173. 

(«)  33  III-  476- 
(c)  6  Mich.  508. 
{xv)  26  III.  200. 
(x)  2  Scam.  505. 


I70  ASSUMPSIT. 


Special  pleas  in  bar. 


special  matter  to  be  proved  on  the  trial,  if  such  special  mat- 
ter goes  to  the  denial  of  the  execution  of  a  note  sued  on,  the 
evidence  offered  to  establish  this  fact  will  be  inadmissible. 
Such  a  defense  must  be  by  plea,  verified  by  oath,  (j') 

SPECIAL    PLEAS    IN    BAR. 

It  is  the  essence  of  special  pleas  that  they  confess  the 
truth  of  the  allegations  which  they  propose  to  answer  or 
avoid.  It  was  formerly  the  practice  in  many  cases  to  frame 
such  pleas  with  a  formal  confession,  using  the  introductory 
phrase  of  "true  it  is,  that,"  etc.,  and  then  proceeding  to 
plead  in  answer  to  the  matter  thus  explicitly  admitted. 
But  this  method  is  now  generally  abandoned.  It  is  essen- 
tial, however,  that  the  confession,  though  not  express, 
should  be  distinctly  implied  in,  or  inferable  from  the  mat- 
ter of  the  pleading,  (z)  If  a  plea,  therefore,  purporting  to 
be  by  way  of  confession  and  avoidance,  (or  not  pleaded  by 
way  of  traverse,)  does  not  import  a  confession  of  the  ad- 
verse allegations,  it  is  defective,  and  insufficient,  [a)  Plead- 
ings in  confession  and  avoidance  should  give  color,  (d) 
The  term  color  signifies  an  apparent  or  -prima  facie  right ; 
and  the  meaning  of  the  rule  that  pleadings  in  confession 
and  avoidance  should  give  color,  is  that  they  should  con- 
fess the  matter  adversely  alleged,  to  such  an  extent  at  least, 
as  to  admit  some  apparent  right  in  the  opposite  party,  which 
requires  to  be  encountered  and  avoided  by  the  allegations 
of  new  matter,  {c) 

When  a  plea  purporting  to  be  special  amounts  only  to 
the  general  issue,  it  will  be  obnoxious  to  a  special  demur- 
rer, {d) 

{y)  29  111.  83. 

{z)  Stephen's  PI.  200. 

(c)  I  Saund,  13,  27;  3  Term,  298;   10  Barn.  &  Cress.  263. 

(J))  Salk.  273;  5  Mod.  252;   i  Chit.     PI.  443,  446. 

(c)  Stephen's  PI.  203;  2  Head  (Tenn.),  538;  17  Ala.  119. 

{d)  13  111.  133;  20  111.  557;  25  111.  317;  36  Miss.  53,  404;  5  McLean,  76; 
6  McLean,  401 ;  24  Miss.  427 ;  2,Z  I^-  308;  35  111-  51S;  48  111.  492 ;  44  111.  129; 
54  111.  201. 


ASSUMPSIT.  171 

Special  pleas  in  bar. 


Where  the  general  issue  is  pleaded,  other  pleas  amount- 
ing merely  to  that  issue  may  be  rejected  on  motion  ;  {d)  so 
where  two  or  more  pleas  are  substantially  alike,  all  but  one 
may  be  rejected  on  motion,  {e) 

A  special  plea  always  controls,  so  far  as  it  goes,  the  gen 
eral  issue.  {/) 

No  matter  of  defense  which  denies  what  the  plaintiff 
would  be  bound  to  prove  under  the  general  issue  should  be 
pleaded  specially,  {g) 

A  plea  bad  in  part,  is  bad  in  all.  (//)  A  contradictor}' 
pica  is  bad  on  general  demurrer.  (/) 

In  general,  whatever  is  alleged  in  pleading  must  be  al- 
leged with  certainty.  [J) 

The  following  rules  laid  down  by  Stephen,  in  his  work 
on  pleading,  may  be  useful  in  this  place  : 

1st.  It  is  not  necessary  to  allege  in  pleading  that  which 
is  merely  matter  of  evidence,  {k) 

2d.  It  is  not  necessary  to  state  matters  of  which  the  court 
takes  notice  ex  officio^  (/)  nor  matters  which  would  come 
more  properly  from  the  other  side,  {jn) 

3d.  It  is  not  necessary  to  allege  circumstances  neces- 
sarily implied ;  {11)  nor  what  the  law  will  presume.  (<?) 

4th.  Pleading  must  not  be  insensible  or  repugnant.  (_^) 

5th.  Pleading  must  not  be  ambiguous  or  doubtful  in 
meaning  ;  and  when  two  different  meanings  present  them- 

(  d)  7  Ind.  526 ;  8  Ind.  256 ;  4  Ind.  645  ;  8  Blackf.  256 ;  ii  111.  308 ;  34  111. 
3S9;  44  111.  129. 
(«)  7  Ind.  599;  4  Ind.  630;  36  Miss.  53. 
(/)  12  La.  An.  739. 

{g)  15  Pick.  219,  317;  I  Mass.  342,  459;  6  Mass.  342. 
(//)  I  Chit.  PI.  464;  5  Blackf.  424. 
( «■)  4  Scam.  51 ;  Steph.  PI.  377. 

(>■)  Steph.  PI.  334;  Com.  Dig.  PI.  C.  22,  17,  E,  5,  F.  17;  30  III.  404. 
\k)  Steph.  PI.  342;  25  Barb.  457;  8  Barb.  569;  4  Sanf.  6S1. 
(/)  Steph.  PI.  346;  8  Ohio,  293;   15  Texas,  437. 

(»0  Steph.  PI.  349.   g  ja  oh^-  67 %~ [S^^^^v^xfofc^y 

(«)  Steph.  PI.  353. 

(o)  Steph.  PI.  354:  3  Diier,  (N.  Y.)  614. 

(/)  Steph.  PI.  377;  20  Mo.  229;   10  Ind.  485;  2  E.  D.  Smith,  (N.  Y.)  50. 


172  ASSUMPSIT. 


Special  pleas  in  bar. 


selves,  that  construction  should  be  adopted  which  is  most 
unfavorable  to  the  party  pleading,  {q) 

6th.  Pleadings  must  not  be  by  way  of  recital,  but  must 
be  positive  in  form,  (r) 

7th.  Things  are  to  be  pleaded  according  to  their  legal 
effect  or  operation.  (5) 

8th.  There  must  be  no  departure  in  pleading.  (^) 

9th.  Surplusage  is  to  be  avoided,  {ti) 

The  object  of  special  pleading  is  to  present  one  single 
isolated  question,  or  point  in  issue,  so  as  to  avoid  confusion  ; 
but  as  many  distinct  facts  as  may  be  necessary  to  present 
one  cause  of  action,  or  defense,  may  be  set  forth  in  one 
count,  or  plea,  {v) 

A  special  plea  in  bar,  which  commences  as  an  answer  to 
the  whole  declaration,  and  answers  only  one  count,  is  bad. 
[2v)  Every  plea  must  answer  all  that  it  assumes  to  answer, 
and  no  more,  (a-)  Pleadings  must  not  be  double.  Du- 
plicity consists  in  alleging  two  or  more  disdnct  matters, 
each  of  which  would  be  as  effectual  an  answer  as  all.  [y) 
The  introducdon  of  matter  of  inducement  or  surplusage, 
not  a  defense  of  itself,  will  not  constitute  duplicity,  {z) 

A  special  plea  admits  every  material  allegation  except 

(y)  Staph.  PI.  378;  I  Gilra.  654;  15  111.  55S;  10  Cal.  317;  2  Met.  (Ky.) 
227;  16  Ala.  742;  5  Cal.  49;  36  111.  49;  45  111.  246;  51  111.  373- 

(rj  Steph.  PI.  388,  and  cases  cited;   17  Texas,  41 ;  9  Cal.  33,  59. 

(5)  Steph.  PI.  3S9,  and  cases  there  cited. 

(/)  Steph.  PI.  410;   I  Hemp.  221 ;  32  Miss.  359. 

(uj  Steph.  PI.  442;  20  Mo.  229;  33  111.  30S. 

(v)  3  Scam.  423  ;  5  Clarke,  460 ;  5  McLean,  267  ;  4  Zabr.  333 ;  2  Ind.  126 ; 
32  111.  325;  75  111.  285. 

(w)  3  Scam.  1S7;  4  Gilm.  443;  13  Ind.  151;  28  Ala.  668;  30  Ala.  562; 
31  Ala.  542;  II  Ind.  268,  327,  509,  527;  10  Humph.  151;  5  Md.  376;  31  111. 
490.     See  32  111.  505  ;  76  111.  488 ;  73  III.  574 ;  81  111.  353  ;  68  111.  226  ;  88  111.  66. 

{x)  3  Scam.  38,  91,  144,  187;  2  Gilm.  378:  4  Ind.  45;  31  111.  490;  32  111. 
211 ;  37  111.  484;   I  Chit.  PI.  453. 

(jK  14  Pick.  156;  14  Mass.  157;  4  Ind.  409;  33  Miss.  474;  13  Pick.  222; 
34  Miss.  688;  2  Hilton,  (N.  Y.)  389;  20  Ark.  495;  23  Conn.  134;  4  Zabr. 
333>  697;  I  Chit  PI.  456;  Gould's  PI.  389.  bo  111.  529. 

{z)  ld.;4  Zabr.  (N.  J.)  333;  Gould's  PI.  395,  397;  i  Chit.  PI.  456,  465. 


ASSUMPSIT.  173 


Special  pleas  in  bar. 


the  one  put  in  issue,  (a)  A  distinct  averment,  which  can 
be  stricken  out  without  injuring  the  other  averments,  will 
not  vitiate  a  pleading,  (d)  unless  it  renders  the  pleading 
double.  The  allegations  of  the  plea  and  the  proof  must 
correspond,  (c) 

Almost  anything  which  goes  in  discharge  of  a  promise 
is  admissible  in  evidence  under  the  general  issue,  (d)  So 
any  matter  which  shows  that  the  plaintiff  never  had  a  cause 
of  action  may  be  given  in  evidence  under  the  plea  of  non 
assumpsit ;  and  most  matters  in  discharge  of  the  action, 
which  show  that  at  the  commencement  of  the  suit  there 
was  no  subsisting  cause  of  action,  may  be  taken  advan- 
tage of  under  this  issue,  [e] 

Where  assumpsit  is  brought  for  the  non-performance  of  a 
contract,  the  defendant  may  show  under  the  general  issue 
that  he  offered  to  perform  his  part  of  the  contract,  but  was 
prevented  by  the  act  of  the  plaintiff,  (y)  A  valid  agree- 
ment to  enlarge  the  time  of  performing  a  contract  may  be 
given  in  evidence  under  the  general  issue,  {g) 

Payment  may  be  given  in  evidence  under  the  general  is- 
sue ;  but  if  it  is  intended  as  matter  of  set-off,  it  must  be 
pleaded  specially,  or  notice  must  be  given  with  the  general 
issue,  {h) 

A  plea  is  defective  which  is  not  good  as  a  defense  for  all 
who  interpose  it.  Matters  of  defense  affecting  a  surety 
only  should  be  pleaded  by  him  alone,  and  not  with  his 
principals.  (?') 

{a)   10  Mass.  So;  56  111.  42;  65  111.  390;  Gould's  PL  317;  72  111.  343. 

{b)  17  Pick.  87;   14  Pick.  156;   12  Mass.  434. 

(c)  36  Miss.  458;  23  Texas,  621 ;   21  III.  85;  24  III.  347. 

{d)  7  Cowen,  27S. 

(c)  13  Johns.  56;   I  Chit.  PI.  419;  Gould's  PI.  304;  83  III.  232. 

(/I  13  Johns.  56,  57. 

{g)  5  Cowen,  497. 

(A)  I  Johns.  531. 

(«•)  50  111.  88. 


174  ASSUMPSIT. 


Special  pleas  in  bar — Pleas,  etc.,  as  to  part — Similiter. 

When  a  law  of  another  slate  is  relied  on  for  a  defense,  it 
must  be  pleaded,  (y) 

(See  the  observations  under  the  head  of  the  general  is- 
sue, ante,  and  the  additional  cases  {k)  mentioned  in  the 
note  below.) 

Pleas,  etc.,  as  to  a  -part,  etc. — It  is  to  be  observed,  that 
a  plea  which  only  contains  an  answer  to  a  part  of  the  dec- 
laration must  be  qualified  accordingly  in  the  commence- 
ment ;  and  a  like  rule  applies  to  all  subsequent  pleadings. 
Such  a  plea  may  commence  :  "And  for  a  further  plea  in 
this  behalf,  as  to  all  the  counts  of  the  said  declaration  ex- 
cept the  last,"  or  "as  to  all  the  several  supposed  promises 
in  the  said  declaration  mentioned,  except  as  to  the  sum  of 
dollars,  parcel  of  the  sums  of  money  in  the  said  dec- 
laration mentioned,"  (or  as  the  case  may  be,)  "the  defend- 
ant says  that  the  plaintiff'  ought  not  to  have  his  aforesaid 
action,"  etc.  In  like  manner,  a  replication  may  commence  : 
"And  as  to  the  said  plea  of  the  defendant  by  him  secondly 
above  pleaded,  so  far  as  the  same  relates  to  the  several 
promises  in  the  said  first  and  third  counts  of  the  said  decla- 
ration mentioned,  the  plaintiff  says  that  he  ought  not,  by 
reason  of  anything  in  that  plea  alleged,  to  be  barred,"  etc. 

Common  and  special  similiter  to  -pleas,  etc. — When  the 
defendant  pleads  only  one  plea,  concluding  to  the  country, 
the  issue  is  made  up  by  adding,  at  the  end  of  the  plea,  the 
common  similiter,  in  these  words  :  "And  the  plaintiff  does 
the  like."  When  however  there  are  several  pleas,  some 
concluding  to  the  country,  and  others  with  a  verification, 
the  special  similiter,  as  below,  is  proper  as  a  replication  to 
all  the  former,  inserting  the  words  "secondly,"  "thirdl3s" 
etc.,  "above  pleaded,"  etc.     This  applies  also  to  the  mak- 

(/)  24  111.  293 ;  35  111.  424. 

(>&)  33  III.  476;  36  111.  174;  37  111-  260;  3S  111.  303;  39  111-  79;  43  111-  155, 
207;  46  III.  25;  4S  III.  13S;  52  111.  343. 


ASSUMPSIT.  175 


Special  pleas  in  bar — Statute  of  limitaticns. 


ing  up  of  issues  on  replications, rejoinders,  etc.,  concluding 
to  the  country. 

JVo.  69.      Special  similiter  to  -plea. 

In  the Court. 

Term,  18 — . 

A.  B.  ^ 

vs.      >  Assumpsit. 
C.  D.  )      And  the  plaintiff,  as  to  the  plea  of  the  defend- 
ant by  him  first  above  pleaded,   and  whereof  he  has  put 
himself  upon  the  country,  does  the  like. 

No.   70.     Pica  of  the  statute  of  limitations. 

{If  pleaded  as  a  first  plea  ^  commence  as  indicated  in  the 
observation  under  this  form ;  if  as  a  second  or  suhseqiieni 
pica.,  commence  as  follows :)  And  for  a  further  plea  in  this 
behalf,  the  defendant  says  that  the  plaintiff  ought  not  to 
have  his  aforesaid  action  against  him,  the  defendant,  be- 
cause he  says,  (*)  that  the  several  supposed  causes  of 
action  in  the  said  declaration  mentioned  did  not,  nor  did 
any  or  either  of  them,  accrue  to  the  plaintiff  2X  any  time 
within  five  years  next  before  the  conmiencement  of  this  suit, 
in  manner  and  form  as  the  plaintiff  has  above  complained 
against  him,  the  defendant :  And  this  the  defendant  is 
ready  to  verify;  wherefore  he  prays  judgment  if  the  plaintiff 
ought  to  have  his  aforesaid  action  against  him,  etc. 

K  first  plea,  when  special,  commences  (after  the  title  of 
the  court,  etc.,)  in  this  manner:  "And  the  defendant,  by 
G.  H.,  his  attorney,  comes  and  defends  the  wrong  and  in- 
jury, when,  etc.,  and  says  that  the  plaintiff  ought  not  to 
have  his  aforesaid  action,"  etc. 

The  above  form  of  the  plea  of  the  statute  of  limitations 
{actio  non  accrevit,  etc.,)  is  necessary  whenever  it  is  desired 
to  plead  that  defense  to  a  declaration  containing  a  count  on 
a  cause  of  action  which  did  not  accrue  until  after  the  mak- 
ing of  the  contract — as  on  a  promissory  note,  for  example ; 
and  it  will  sutlice  in  all  cases,  though  in  indebitatus  as- 
sumpsit, and  in  other  instances  where  the  statute  begins  to 
run  trom  the  time  of  the  promise,  it  is  proper  to  plead  that 


176  ASSUMPSIT. 


Special  pleas — Statute  of  limitations — Replications,  etc. 

the  defendant  did  not  at  any  time  within  live  3'ears,  etc., 
promise,  etc.  {iioti  assumpsit  iiifra,  etc.)  {a)  The  italicized 
words,  to  the  -plaint iff .^  are  to  be  omitted  in  actions  at  the 
suit  of  executors,  etc. 

JVo.   71.      Replication  to  No.    70 — Causes  of  action  did 
accrue  -within  jive  years. 

(Similiter  to  general  issjie,  if  pleaded,  as  ante,  No.  69  ; 
if  not,  entitle  first  replication  as  in  that  form.)  And  the 
plaintiff,  as  to  the  plea  of  the  defendant  by  him  secondly 
above  pleaded,  says  that  he,  the  plaintift",  by  reason  of  any- 
thing in  that  plea  alleged,  ought  not  to  be  barred  from  hav- 
ing his  aforesaid  action,  because  he  says,  (*)  that  the  said 
several  causes  of  action,  and  each  and  every  of  them,  did 
accrue  to  him  within  five  years  next  before  the  commence- 
ment ol  this  suit,  in  manner  and  form  as  he  has  above  com- 
plained against  the  defendant :  And  this  the  plaintiff'  prays 
may  be  inquired  of  by  the  country,  etc. 

Under  this  replication  the  plaintiff'  may  not  only  show 
that  the  cause  of  action  did  accrue  within  five  years,  but 
may  prove  a  promise  or  acknowledgment  made  after  the 
accruing  of  the  original  cause  of  action,  and  within  the  time 
limited  by  the  statute  ;  {p)  though  it  is  said  a  special  repli- 
cation is  in  general  advisable,  because  it  reduces  the  proof 
to  be  adduced  by  the  plaintiff'  on  the  trial,  (c) 

No.  72.     Special  similiter,  to  replication  concluding  to  the 
country,  [cc) 

In  the Court. 

• Term,  18 — . 


Assumpsit. 

And  the  defendant,  as  to  the  said  replication 
of  the  plaii.jtfto  the  ^-dXd^  second  plea  of  the  defendant,  and 
which  the  plaintiff'  has  prayed  may  be  inquired  of  by  the 
country,  does  the  like. 

(a)  3  Chit.  PI.  940,  941,   notes;  i  Saund.  t,-}^.,  n.  2,  2S3,  n.  2;  Id.  63  d\   1 
Saund.  63  c,  n.  6;  16  East,  421. 

(Z*)  I  Cliit.  PI.  502;   3  Swan's  PI.  699,  C. 
(c)  I  Chit.  PI.  503. 
{cc)  Auie,  page  174. 


ASSUMPSIT.  177 


Special  pleas — Statute  of  limitations — Replications,  etc. 

No.    73.     Bcflication  to  No.  70 — Defendant  was  out  of 
the  state  zvhen  causes  of  action  accrued. 

{As  in  No.  71,  to  the  asterisk,  a7id  then  proceed:)  that 
the  defendant,  at  the  time  when  the  said  several  causes  of 
action  accrued  to  the  plaintiff,  was  out  of  this  state,  to  wit, 

at  ,  in ;  and  that  he,  the  defendant,  afterwards, 

to  wit,  on,  etc.,  returned  to  this  state ;  w^hich  said  return  of 
the  defendant  was  his  first  return  to  this  state  after  the  ac- 
cruing of  the  several  causes  of  action  aforesaid  :  And  the 
plaintiff  further  says,  that  he  commenced  his  said  action 
within  five  years  next  after  the  defendant's  first  return  as 
aforesaid  to  this  state  after  the  accruing  of  the  said  seveial 
causes  of  action.  And  this  the  plaintifl  is  ready  to  verify; 
wherefore  he  prays  judgment,  and  his  damages,  etc.,  to  be 
adjudged  to  him,  etc. 

The  plaintiff  may  (in  Illinois)  also  reply  that  after  the 
cause  of  action  accrued,  the  defendant  departed  from  and 
resided  out  of  the  state,  etc.  {d) 

No.   74.     Rejoinder  to  No.  73,  denying  that  action  was 
commenced  within  five  years  after  defendanfs  rcttirn,  etc. 

(Similiter,  as  ante,  No.  72,  to  any  replication  or  replica- 
tions there  may  be  concluding  to  the  country.  If  none,  en- 
title first  rejoinder  as  in  that  form.)  And  the  defendant,  as 
to  the  said  replication  of  the  plaintiff  to  the  said  second  plea 
of  the  defendant,  says  that  the  plaintiff  ought  not,  by  reason 
of  anything  in  that  replication  alleged,  to  have  his  afore- 
said action  against  him,  the  defendant,  because  he  says,  (*) 
that  the  plaintiff'  did  not  commence  his  said  action  within 
five  years  next  after  the  defendant's  first  return  to  tliis  state 
after  the  accruing  of  the  said  several  supposed  causes  of 
action,  in  manner  and  form  as  the  plaintifY  has  above  in 
that  replication  alleged  :  And  of  this  the  defendant  puts 
himself  upon  the  country,  etc. 

Under  the  former  law  of  Illinois,  in  respect  to  personal 
actions,  if  a  person  against  whom   there  was  a   cause   of 

(</)   Rev.  Stat.  (1S74)  675;   Rev.  Stat.  (1S77)  643. 
12 


I7S  ASSUMPSIT. 


Special  pleas — Statute  of  limitations — Observations. 

action  was  out  of  the  state,  either  at  the  time  of  the  accru- 
ing of  such  cause  of  action  or  afterwards  (within  the  time 
limited,)  so  that  process  could  not  be  served  on  him,  the 
statute  ceased  to  run  for  the  time  of  his  absence,  whether 
he  had  removed  absolutely  or  was  merely  absent  tempo- 
rarily, {dd)  The  present  statute  (in  force  on  and  since 
July  ist,  1872,)  provides,  that  "if,  when  the  cause  of  ac- 
tion accrues  against  a  person,  he  is  out  of  the  state,  the  ac- 
tion may  be  commenced  within  the  times  herein  limited 
after  his  return  to  the  state ;  and  if,  after  the  cause  of  ac- 
tion accrues,  he  dc'parts  f7'oni  and  resides  out  of  the  state, 
the  time  of  his  absence  is  not  part  of  the  time  limited  for 
the  commencement  of  the  action."  {e) 

The  statute  of  limitations  begins  to  run  when  the  cnuse 
of  action  accrues,  {ee^  In  a  case  where  some  act  is  to  be 
done,  or  condition  precedent  to  be  performed,  by  a  partv, 
to  entitle  him  to  his  right  to  sue,  and  no  definite  time  is 
fixed  at  which  the  act  is  to  be  done,  or  condition  performed, 
he  must  exercise  a  reasonable  diligence  to  do  the  one,  or 
perform  the  other,  or  he  will  be  barred  by  the  statute  of 
limitations,  {f) 

The  promise  to  pay  a  debt  barred  by  the  statute  only  re- 
moves the  bar,  and  leaves  the  case  to  be  proved  as  if  no 
statute  had  be^en  pleaded,  {g) 

An  acknowledgment  that  the  oricfinal  debt  once  existed 
is  not  sufficient  to  take  the  case  out  of  the  statute,  but  there 
must  be  an  unqualified  admission  that  the  debt  is  due  and 
unpaid,  [Ji)  and  an  intention  evinced  to  pay  it.  (/) 

To  take  the  case  out  of  the  statute  of  limitations,the  new 
promise  must  be  made  to  the  party  seeking  its  benefit,  or  to 


{dd)  4  G.lm.  125  ;  3  Gilm.  63S  ;   Rev.  Slat.  ^1877)  643. 

{e)  2  Starr  &  Curlis'  An.  Stat.  1556;  Rev.  Stat.  (1S77)  643. 

[ec)  3  Gilm.  597;  33  111.  175;  48  111.  118;  89111.65;  74  111.  13S:  colli  77; 
7  Bradw.  176;  85  111.  304;  12  Bradw,  74;  loo  111.  342,  5S1 ;  103  111,  588; 
107  111.   389. 

(/)  3  G.lm.  597. 

{g)  Breese,  278;  I  Bmdw.  424. 

(/;)  8  Cranch,  72;    11  Wheal.  309;   I  Beters.  360;    12  111.  1 16  ;  2  Tick.  368 

[i)  91  111.  378;    19  111.  iSg;    52  111.  19S;    54  111.  343;    80  111.  47. 


ASSUMPSIT.  1/9 


Assumpsit — Statute  of  limitations. 


some  one  authorized  to  act  for  him.  A  promise  to  a  stranger 
is  insufficient.   (J) 

If  a  maker  of  a  note  makes  a  partial  payment  thereon,  the 
law  implies  a  new  promise  to  pay  the  balance.  But  this  new- 
promise  can  only  be  implied  where  the  maker  designedly 
makes  a  payment  on  the  note.  If  the  holder  indorses  a  credit 
without  authority  from  the  debtor,  it  will  not  impose  upon 
him  the  obligation  of  a  new  promise,  {k)  There  must  be  an 
unqualified  acknowledgment  of  the  debt ;  a  promise  to  pay 
on  a  contingency  which  has  not  happened  is  not  sufficient.  (/) 

To  support  a  plea  of  the  Statute  of  Limitations  to  a  new 
count,  where  such  plea  will  not  lie  to  the  original  declaration, 
it  must  appear  that  the  new  count  introduces  into  the  case  a 
cause  of  action  which  is  substantially  and  essentially  new.  It 
a  new  count  merely  tells  the  same  story  in  a  different  way,  or 
is  a  mere  amplification  or  more  specific  statement  of  the  cau'^e 
of  action  already  declared  upon,  the  plea  can  not  be  sus- 
tained,  {in) 

The  statute  runs  against  minors  to  the  same  extent  as 
against  adults.  (//) 

An  admission  of  the  indebtedness  will  take  the  case  out  of 
the  statute,  although  the  amount  of  the  indebtedness  is  not 
fixed,  {o) 

The  statute  does  not  begin  to  run  until  the  claim  is  due.   {a) 

Actions  for  a  statutory  penalty  must  be  commenced  within 
two  years  next  after  the  cause  of  action  accrued,  {b) 

( j  )   19  111.  189;  I  Bradw.  424  ;  80  111.  47,  596  ;  69  111.  127  ;  7  Eradw.  261, 

53''^. 

{k)  32  111.  382;  I  Bradw.  88;  82  111.  134;  4  Gilm.  108;  4  Pick,  no;  17 
Johns.  182. 

(/)  2  Pick.  368  ;  40  111.  403  ;  2  Bradw.  70,  424 ;  4  Bradw.  161;  loO  111.  427  ; 
15  Bradw.  360  ;  27  111.  13  ;  30  111.  429. 

{m)  17  Bradw.  136;    107  III.  340;  94  111.  54S;  64  111.  128;  4  Bradw,  238. 

(n)  108  U.  S.  514. 

[o)   114  111.  495. 

[a)  17  Bradw.  343. 

(6)  103  III.  211;  89  111.  25. 


i8c  ASSUMPSIT. 


Special  pleas — Statute  of  limitations — Observations. 

A  verbal  promise  to  pay  a  note  previously  given  has  the 
same  effect,  as  regards  the  statute  of  limitations,  as  a  re- 
delivery of  the  note,  and  the  note  is  good  for  the  same 
p,eriod  that  it  would  be  if  it  were  dated  on  the  day  of  the 
new  promise.  (_^) 

Where  the  statutory  period  necessary  to  bar  a  recovery 
at  law  has  passed,  a  foreclosure  in  equity  will  be  barred,  {q) 

A  promise  by  the  defendant  that  he  will  settle  with  the 
plaintiff  as  soon  as  he  gets  the  money  for  certain  work,  is 
a  conditional  promise,  and  can  neither  serve  for  the  founda- 
tion of  an  action,  nor  be  taken  as  a  waiver  of  the  statute  of 
limitations,  without  at  least  proving  that  the  defendant  re- 
ceived the  money  for  the  work,  (r) 

To  take  a  case  out  of  the  statute  by  a  partial  payment,  it 
must  appear  that  the  payment  was  made  on  account  of  the 
debt  for  which  the  action  is  brought ;  (5)  and  there  must  be 
proof  that  such  payment  was  made  by  the  defendant.  (/) 

The  acknowledgment  of  a  debt,  in  order  to  take  it  out 
of  the  statute,  must  clearly  refer  to  the  very  debt  in  ques- 
tion between  the  parties,  {ti) 

Where  a  statute  of  limitations  begins  to  run,  it  will  con- 
tinue to  run  until  it  operates  as  a  complete  bar,  unless 
there  is  some  saving  clause  or  qualification  in  the  statute 
itself,  {v) 

Cases  within"  the  reason,  but  not  within  the  words,  of  the 
statute,  are  not  barred  by  it,  {zv)  and  it  will  not  be  applied 
to  cases  not  clearly  within  its  provisions,  {x) 

The  present  statute  of  Illinois,  (act  of  1872,)  above  men- 
tioned, requires  all  suits  on  unwritten  contracts,  express  or 


(/)  30  111.  429. 

[q)   28  111.  44  ;  34  111.  112. 

(r)  27  111.  107. 

[s)   12  Ind.  174;  32  111.  382;  10  Bradw.  230 

[t]   10  Ind.  868 ;  32  111.  382 ;  loo  111.  427. 

(m)  9  Cowen,  674. 

{v)   II  111.  341 ;  82  111.  435. 

[w)  4  Gilm.  194,  207;  12  Bradw.  74,  356. 
{x)   II  III.  9. 


ASSUMPSIT.  iSr 


Special  pleas — Infancy. 


implied,  to  be  brought  within  five  3'ears,  and  all  suits  on 
written  contracts  or  evidences  of  debt  within  ten  years, 
after  the  accruing  of  the  respective  causes  of  action.  If 
any  payment  or  new  promise  is  made,  in  writing,  on  any 
such  written  contract  or  evidence  of  debt,  within  or  after 
such  period  of  ten  years,  an  action  may  be  commenced 
thereon  at  any  time  within  ten  years  after  such  payment  or 
promise.  If  the  person  entitled  to  bring  a  personal  action 
is  an  infant,  or  insane,  or  imprisoned  on  a  criminal  charge, 
at  the  time  of  the  accruing  of  the  cause  of  action,  the  suit 
may  be  brought  within  two  years  after  the  disability  is  re- 
moved. And  if  a  person  liable  to  an  action  fraudulently 
conceals  the  cause  of  such  action  from  the  person  entitled 
thereto,  the  action  may  be  commenced  at  any  time  within 
five  years  after  the  person  entitled  to  bring  the  same  dis- 
covers that  he  has  such  cause  of  action,  (y) 

The  limitation-law  in  force  when  the  cause  of  action  ac- 
crues is  the  law  which  governs  as  to  the  time  within  which 
the  action  must  be  bought,  (z) 

The  statute  of  limitations  must  be  specially  pleaded  to  all 
actions  of  a  personal  nature,  (a) 

The  principal  Illinois  cases,  not  already  cited,  relating 
to  limitations  of  personal  actions,  are  noted  below,  {d) 

A^'o.  75.     P/ca  of  infancy. 

(^As  in  JVo.  70,  ante,  to  the  asterisk,  and  then  proceed:)  that 
he,  the  defendant,  at  the  time  of  the  making  the  several 
supposed  promises  in  the  said  declaration  mentioned,  was 
an  infant  within  the  age  of  twenty-one  years,  to  wit,  of  the 

age  of years  :  And  this  he  is  ready  to  verify;  where- 

lore  he  prays  judgment,  etc.  {concluding  as  in  No.  70.) 

(y)  Rev.  Stat.  (1S74)  676;    Rev.  Stat.  (1877)  644. 

(2)  25  111.  216;  87  111.  96;   77  111.  331;  Zi  111.  256. 

(a)i  Chit.  PI.  420;   14  111.  303;  23  111.  397. 

\b)  Breese,  36,  64;  i  Scam.  106,  204;  3  Scam.  549;  i  Gilm.  306;  2  Gilm 
473;  3  Gilm.  105;  II  III.  54;  13  111.  535;  14  111.  495;  15  111.  I,  200;  16  111. 
109,  190,  341,  539;  iSIU.  91,  209;  19  111.  394;  23  111.  525;  30  111.  395;  32 
111.  82;  34  111.  9;  35  111.  175;  36  111.  255;  45  111.  33,  349,  392;  46  111.  276; 
4S  111.  226;  50  111.  186;  52  111.  84,  299,  454;  53  111.  196,  2S9;  54  111.  293. 


i82  ASSUMPSIT. 


Special  pleas — Infancy — Replications,  etc. 


If  the  defendant  is  still  an  infant,  the  commencement  of 
the  first  plea  should  be  (after  entitling  it)  as  follows  :  "And 
the  said  C.  D.,  by  G.  H.,  admitted  by  the  court  here,  as 
guardian  of  the  said  C.  D.,  to  defend  for  him  the  said  C. 
D.,  who  is  an  infant  under  the  age  of  twenty-one  years, 
comes,  etc.,  and  says,  etc." 

No.  76.     Replication  to  No.  75,  denying  infancy. 

{As  in  N^o.  71,  ante,  to  the  aste7'isk,  and  then  ■proceed:') 
that  the  defendant,  at  the  time  of  the  making  of  the  said 
several  promises,  was  of  the  full  age  of  twenty-one  years, 
and  not  within  the  age  of  twenty-one  years,  as  the  defend- 
ant has  above  in  that  plea  alleged  :  And  this  the  plaintilT 
prays  may  be  inquired  of  by  the  country,  etc. 

No.  77.     Replication  to  No.  75,  that  goods,  etc.,  were 

necessaries. 

{As  in  No.  71,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  said  goods,  chattels  and  effects,  {or  whatever  the 
declaration  charges,)  in  the  said  declaration  mentioned  to 
have  been  sold  and  delivered  by  the  plaintiff  to  the  defend- 
ant, were  necessaries  suitable  to  the  condition  and  estate  of 
the  defendant :  And  this  the  plaintiff  is  ready  to  verify; 
wherelbre  he  prays  judgment,  and  his  damages,  etc.,  to  be 
adjudged  to  him,  etc. 

For  a  replication  of  this  kind  as  to  certain  counts,  with 
a  nolle  prosequi  as  to  the  rest  of  the  counts,  see  3  Chit.  PI. 
1 146,  and  2  Swan's  Pr.  695. 

No.  78.     Rejoinder  to  the  last  replication,  defiying  it. 

{As  in  No.  74,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  said  goods,  chattels  and  effects,  in  the  said  decla- 
ration mentioned  to  have  been  sold  and  delivered  by  the 
plaintiff  to  the  defendant,  were  not  necessaries  suitable  to 
the  condition  and  estate  of  the  defendant,  as  the  plaintiff 
has  above  in  that  replication  alleged  :  And  of  this  the  de- 
fendant puts  himsell  upon  the  country,  etc. 


ASSUMPSIT.  183 


Special  pleas — Infancy — Replications,  etc. 


JVo.    79.      Replication   to   ]Vo.    75,    that    defendant    con- 
Jirmed  his  p)-oinises  after  coming  of  age.  [c) 

(As  in  JVo.  71,  ante,  to  the  asterisk,  and  then  proceed :^ 
that  the  defendant,  after  the  making  of  the  said  several 
promises,  and  before  the  commencement  of  this  suit,  to  wit, 
on,  etc.,  attained  his  full  age  of  twenty-one  years  ;  and  that 
he,  the  defendant,  after  he  had  so  attained  his  age  of  twenty- 
one  years,  and  before  the  commencement  of  this  suit,  to 
wit,  on,  etc.,  in  the  county  aforesaid,  ratified  and  confirmed 
the  said  several  promises  :  And  this  the  plaintiff  is  ready 
to  verify;  wherefore  he  prays  judgment,  and  his  damages, 
etc.,  to  be  adjudged  to  him,  etc. 

I 
JS/o.  80.     Rejoinder  to  the  last  replication,  denying  it. 

{As!  in  A^o.  74,  ante,  to  the  asterisk,  and  then  proceed :) 
that  he  did  not,  after  he  attained  the  age  of  twenty-one 
years,"  and  before  the  commencement  of  this  suit,  ratify  or 
confirm  the  said  several  supposed  promises,  or  any  or  either 
of  them,  in  manner  and  form  as. the  plaintiff'  has  above  in 
that  replication  alleged  :  And  of  this  the  defendant  puts 
himself  upon  the  country,  etc. 

An  infant  becomes  of  full  age  on  the  day  preceding  the 
twenty-first  anniversary  of  his  birth,  [d)  and  females  are  at 
their  majority  at  eighteen,  in  Illinois,  (e) 

The  implied  contracts  of  an  infant  for  necessaries  are 
binding  upon  him.  {f)  What  are  necessaries  is  determined 
by  the  court;  whether  furnished,  and  their  value,  by  the 

wy-  ig) 

An  infant  is  not  liable  for  repairs  on  his  dwelling-house, 
although  he  made  a  contract  therefor,  and  such  repairs 
were  necessary  to  prevent  an  immediate  and  serious  injury 
to  the  house,     (h) 

(c)  See  another  form,  3  Chit.  PI.  II47. 

(d)  6  Dana,  233  ;  6  Ind.  447. 
<^f)  19  111.  328;   18  111.  209. 

(/■)  14  111.  158;  2  Md.  Ch.  Decis.  81 ;  9  Mich.  274;  41  N.  II.  346. 

(^)  5  Ind.  42. 

(/i)  12  Metcalf",  559.     See  49  111.  53. 


i84  ASSUMPSIT. 


Special  pleas — Infancy — Observations,  etc. 


The  note  of  an  infant  is  not  void,  but  voidable,  and  a 
promise  to  pay^made  by  him  after  he  becomes  of  age,  ren- 
ders the  note  valid.  If  the  promise  is  conditional,  perform- 
ance or  the  happening  of  the  condition  must  be  affirmatively 
shown, to  sustain  an  action.  A  promise  to  pay  as  soon  as 
he  could,  is  conditional,  and  unavailing  without  proof  of 
ability.  ( /) 

A  negotiable  note  given  by  an  infant,  even  for  necessa- 
ries, is  voidable.  {J) 

Where  a  minor  contracted  to  work  nine  months,  but  only 
worked  one  month  and  a  half, and  then  ceased,  it  was  held 
that  he  was  not  bound  by  his  contract,  and  could  recover 
from  his  employer  the  value  of  the  services  rendered,  {k) 

An  infant  can  not  bind  himself  by  bond ;  and  if  he  has 
made  a  bond  during  infancy,  and  after  he  comes  of  age 
makes  a  parol  promise  to  pay  a  smaller  sum,  in  lieu  of  the 
amount  of  the  bond,  the  suit  should  be  brought  on  the  parol 
promise.  (/) 

To  make  a  voidable  contract  of  an  infant  binding  upon 
him,  he  must  expressly  ratify  it  after  he  attains  full  age ; 
and  a  ratification  will  not  be  inferred  from  a  mere  acknowl- 
edgment of  the  debt.  A  promise  to  pay,  or  a  direct  con- 
firmation, after  the  person  has  attained  his  full  age,  is  evi- 
dence of  such  ratification  ;  {m)  and  it  must  be  made  with 
a  full  knowledge  that  the  party  is  not  liable  by  law.  («)  It 
must  be  voluntary,  and  not  under  terror  of  an  arrest,  and 
must  be  made  before  the  commencement  of  the  action,  {o) 

Where  an  infant,  upon  being,  applied  to  for  payment  of 
a  note  made  by  him  during  his  infancy,  acknowledged  that 

{i)  17  Wend.  419;  3  Wend.  479  ;  loo  111.  356. 
{j)   10  Johns.  33;  no  III.  16;  5  Br^dw.  533. 
(/.)  52  ill.  485. 

(/)  1  Scam.  484.     See  1  Pars.  Con.  323.  325,  326;  loi  III.  no. 
[m]  7  Ind.   553;  9  Ma.s.  62,  64;    10  Mass.  137,   140;   14  Mass.  457,  460  j  1 
Pick.  202;  4  Pick.  48. 

(«)  9  Mass.  62,  64;  I  Pick.  202,  203.     See  13  Biadw.  349. 
(0)  9  Mass.  62,  64 ;  I  Pick.  202,  203. 


ASSUMPSIT.  185 


Special  pleas — Infancy — Observations. 


the  money  was  due,  and  promised  that  on  his  return  to  his 
home  he  would  endeavor  to  procure  it,  and  send  it  to  his 
creditor,  it  was  held  that  there  was  a  sufficient  ratification 
of  the  original  promise.  (^) 

The  ratification  of  an  infant's  contract  should  be  a  promise 
to  a  party  in  interest,  6r  his  agent ;  and  such  ratification 
should  be  equivalent  to  a  new  contract,  {q) 

If  an  infant  with  his  own  hands  pays  money  without  a 
valuable  consideration,  he  can  not  recover  it  again,  (r) 

Contracts  made  by  an  infant  are  not  void,  but  voidable 
only,  and  by  the  infant  alone.  (5)  It  is  a  personal  privilege, 
of  which  none  can  take  advantage  but  the  infant.  (/) 

Infancy  in  legal  proceedings  will  not,  as  a  general  rule, 
be  presumed.  It  must  be  pleaded  and  proved,  as  the  case 
may  require,  {u)  But  infancy  may  be  given  in  evidence 
under  the  general  issue,  in  assumpsit,  though  it  is  in  gen- 
eral better  to  plead  it.  {v) 

When  infancy  is  alleged,  the  burden  of  proof  devolves 
upon  him  who  alleges  it.  {w)  But  if  a  new  promise  is  re- 
plied, the  infancy  is  a.dmitted.  (^x) 

Where  one  of  two  defendants  pleads  his  infancy,  it  has 
been  held  that  the  plaintiff  may  enter  a  nolle  f^-oscqiii  as  to 
him,  and  proceed  to  judgment  against  the  other  defendant ; 
or  the  jury  may  find  a  verdict  for  the  infant  defendant,  and 
a  verdict  for  the  plaintiff  against  "the  other  defendant,  (j) 
This  may  doubtless  be  done  under  the  practice-act  of  lili- 
es) 14  Mass.  457. 

{q)  3  Wend.  347 ;  36  Miss.  389. 

(r)  4  Eng.  Com.  Law,  189. 

(5)  13  Barb.  536. 

(/)  2  Kent  Com.  249;  2  Parsons  on  Con.  275;  2  Johns.  379;  6  Johns.  257; 
23  Texas,  252. 

(«)  7  Ind.  398. 

{v)  I  Chit.  PI.  417,  421. 

(w)  1  Greenleaf  Ev.,  sec.  Si. 

(*)  3  Wend.  479. 

(^)  5  Johns.  160;  I  Pick.  500;  17  Pick.  516;  13  Mame,  474;  5  Wend. 
228. 


i86  ASSUMPSIT. 


special  pleas — Statute  of  frauds — Replications. 


nois,  but  the  contrary  seems  to  have  been  the  rule  at  com- 
mon law.  (z) 

A  judgment  against  an  mfant,  without  first  appointing  a 
guardian  ad  litcm^  is  erroneous,  {a)  Such  a  judgment 
may  be  set  aside  in  the  court  where  it  is  rendered,  on  mo- 
tion ;  and  when  the  judgment  has  been  set  aside,  the  de- 
fendant may  make  any  defense  to  which  he  may  be  en- 
titled. {!)) 

An  exchange  of  property  made  by  a  minor  is  voida- 
ble, (c) 

See  further,  as  to  the  law  in  respect  to  infancy,  in  Illi- 
nois, the  additional  cases  given  in  the  note,  {d) 

No.  8i.     Plea  of  the  statute  of  frauds — Ag?'eeinent  not  to 
be  performed  within  a  year ^  and  not  in  ivriti7ig. 

{First  -plea,  non  assumpsit,  as  ante,  No.  66 ;  second 
plea  as  ante,  No.  70,  to  the  asterisk.,  and  then  proceed:) 
that  each  and  every  one  of  the  several  supposed  promises 
in  the  said  declaration  mentioned  was  an  agreement  which 
was  not  to  be  performed  within  the  space  of  one  year  from 

the  time  of  the  making  thereof,  to  wit*  the day  of , 

in  the  year  18 — ,  and  was  not  nor  is,  nor  was  nor  is  any 
memorandum  or  note  thereof,  in  writing,  signed  by  the 
defendant,  or  by  any  ether  person  thereunto  by  him  law- 
fully authorized,  according  to  the  form  of  the  statute,  etc.  : 
And  this,  etc.  {conclude  with  a  verification^  as  ante,  No. 
70.) 

No.  82.     Replication  to  No.  81,  that  agreement  was  to  be 
performed  within  a  year. 

{As  in  No.  71,  ante,  to  the  asterisk,  and  then  proceed:) 
that  each  and  every  one  of  the  said  several  promises  was 

(2)   I  Chit.  PI.  35  ;  3  Esp.  76;  Tidd's  Pr.  7th  ed.  710. 

(a)  19  111.  226,  14  Gray  (Mass  ),  179,  10  Bradw.  376;  112  111.  329;  I16  111. 
649 

{b)  21  111.  137  ;  6  Bradw.  507. 

(f)   34  Maine.  594. 

((f)  Breese,  31  ;  I  Scam.  554;  2  Scam.  221  ;  4  G  Im.  370;  5  Gilm  531;  12 
111.  150,  166,  255.  266,  397,  422,  470;  15  111.  277  ;  16  111.  354;  17  111.  276;  iS 
111.  48,  64,  77  ;  21  111.  164  ;  23  111.  36  ;  25  111.  132;  27  111.  129,  148,  434;  32  111. 
66;  33  111.  182;  36  111.  373;  38  111.  145;  41  111.  172,  490;  43  111.  239. 


ASSUMPSIT.  187 


Special  pleas — Statute  of  frauds — Replications. 


an  agreement  which  was  to  be  performed  within  the  space 
of  one  year  from  the  time  of  the  making  thereof  as  afore- 
said, and  not  an  agreement  which  was  not  to  be  performed 
within  the  space  of  one  year  from  that  time,  as  the  defend- 
ant has  above  in  that  plea  alleged  :  And  this  the  plaintitf' 
prays  may  be  inquired  of  by  the  country,  etc. 

The  plaintiff  may  reply  that  the  agreement  was  in  writ- 
ing, and  signed,  etc.,  and  set  out  the  agreement  in  the  rep- 
lication, (a) 

IVo.  83.  Plea  oj  the  statute  of  frauds — Pi'oniise  was  to 
ans-vcr  for  the  debt  of  another  person,  and  was  not  in 
writing. 

{Pirst plea,  non  assumpsit,  as  in  No.  66,  ante;  second 
■plea  as  ante,  No.  70,  to  the  asterisk,  and  then  proceed:) 
that  each  and  every  one  of  the  several  supposed  promises 
in  the  said  declaration  mentioned  was  a  special  promise  to 
answer  for  the  debt  of  another  person,  to  wit,  one  (or  "the 
said")  L.  M.,  and  was  not  nor  is,  nor  was  nor  is  any  mem- 
orandum or  note  thereof,  in  writing,  signed  by  the  defend- 
ant, or  by  any  other  person  thereunto  by  him  lawfully 
,  authorized,  according  to  the  form  of  the  statute,  etc.  :  And 
this,  etc.  {conclude  with  a  ver  if  cation,  as  in  No.  70,  ante.) 

No.  84.     Replication  to  No.  83,  that  the  promise  was  not 
to  anszucr  for  the  debt  of  another  person. 

{As  in  No.  71,  ante,  to  the  asterisk,  and  then  proceed :) 
that  the  several  promises  atbresaid  were  not  special  prom- 
ises, nor  was  either  of  them  a  special  promise,  to  answer 
for  tiie  debt  of  the  said  L.  M.,  as  the  defendant  has  above 
in  that  plea  alleged  :  And  this  the  plaintiff  prays  may  be 
mquired  of  by  the  country,  etc. 

The  above  forms  of  pleas  can  be  readily  adapted  to  any 
other  cases  within  the  statute — promises  by  executors  or 

44  111.  194,  503  ;  45  111.  348;  50  111.  56,  232,  429;  52  111.  473;  53  111.  134,  3S6; 
54  111-  231,  316. 
(a)  II  Price,  494. 


iS8  ASSUMPSIT. 


Special  pleas — Statute  of  frauds — Observations. 


administrators,  agreements  upon  consideration  of  marriage, 
or  contracts  concerning  lands,  etc. 

The  defense  of  the  statute  of  frauds  must  be  set  up  and 
relied  upon  in  some  manner,  (d)  but  it  may  either  be 
pleaded  specially  or  shown  under  the  general  issue,  (c) 
Advantage  may  be  taken  of  the  statute,  under  the  plea  of 
noil  assumpsit,  by  objection  to  all  verbal  evidence  offered 
in  support  of  the  declaration,  [cc)  It  would  seem  to  have 
been  usual  in  England  to  prove  this  defense  under  the 
general  issue,  but  the  defendant  was  at  liberty  to  plead  it 
specially,  {d) 

On  appeal  from  a  justice's  court,  where  the  proceedings 
are  ore  tenus,  the  statute  of  frauds  is  presumed  to  have 
been  pleaded,  if  necessary  to  the  defense,  {e) 

The  plea  of  the  statute  of  frauds  is  a  personal  privilege, 
like  the  plea  of  infancy,  which  a  party  may  waive.  An- 
other person  can  not  plead  it  for  him,  or  compel  him  to 
plead  it.  (/) 

It  has  been  held  that  the  statute  has  not  changed  the 
mode  of  pleading,  and  hence  that  the  declaration  need  not 
aver  that  the  agreement  was  in  writing,  but  the  defendant 
may  rely  upon  the  statute  under  the  evidence,  [g) 

To  take  a  case  out  of  the  statute,  no  particular  form  of 
words  is  necessary  in  the  written  agreement  or  memoran- 
dum :  anything  from  which  the  intention  may  be  gathered 
is  suflicient — any  kind  of  a  writings  from  a  solemn  deed 
down  to  mere  memoranda  in  books,  papers  or  letters. 
These  must  be  certain  enough  on  their  face,  or  by  refer- 

{h)  2  Scam.  219;  23  111.  39;  27  111.  115,  312;  47  111.  353;  49  111.  289  ;  84  111. 
512  ;  Iu9  111.  198  ;  114  111.  118. 

((")  50  111.  412  ;  15  Johns.  425.  As  to  gen.  is.,  4  Johns.  237  ;  I  Caines,  45  ;  6 
1 1  ill,  3S  ;  I  Chit.  PI.  417  ;  Gould's  PI.  307  ;  67  111.  469 ;  84  111,  512. 

(cc)  Gould's  PI.  307;  84  111.  512;  71  111.  121. 

((/)   I  Chit.  PI.  421 ;  I  Wils.  305  ;  I  Moore  &  P.  294. 

{e)  22  111.  248;  28  111.  262. 

(/)    I  Gilm.  584;  49  111.  289;  18  Pick.  369;  20  Bradw.  550, 

UO  4  Johns.  237.  See  Goulds  PI.  307  ;  50  111.  412;  14  Bradw.  546;  95  111. 
495. 


ASSUMPSIT.  189 


Special  pleas — Statute  of  frauds — Observations. 

ence,  to  show  the  parties,  the  interest  or  property  to  be 
affected,  and  the  consideration,  {h)  The  person  to  be 
charged,  or  his  agent,  must  sign  the  agreement ;  and  parol 
proof  of  the  agency  is  sufficient  to  hold  the  party  who  has 
acted  by  agent.  The  signing  ma}'^  be  in  the  caption,  in  the 
body,  or  at  the  end  of  the  instrument.  The  agreement 
must  be  signed  with  an  intent  to  enter  into  it,  and  must  be 
mutual  and  upon  good  consideration.  (/) 

When,  in  performance  of  a  verbal  contract  originally 
within  the  statute,  money  has  been  paid,  it  can  not  be  re- 
covered. {J) 

Collateral  and  original  undertakings. — If  the  promise 
(to  answer  for  a  debt  incurred  for  the  benefit  of  another)  is 
an  original  undertaking,  it  need  not  be  in  writing ;  {k)  but 
there  must  be  a  consideration ;  and  the  plaintifl  must  de- 
clare as  upon  an  original  contract.  (/) 

Where  on  a  sale  of  goods  a  third  person  guaranties  that 
the  purchaser  will  pay  for  them,  and  thereupon  the  goods 
are  delivered,  this  is  a  collateral  undertaking ;  but  there  is 
no  necessity  for  any  distinct  consideration  passing  between 
the  seller  and  the  guarantor,  for  it  being  all  one  entire  trans-, 
action,  the  delivery  of  the  goods  to  the  purchaser  will  sup- 
port not  only  his  promise  but  the  promise  of  the  guarantor  ; 
and  such  a  guaranty,  in  writing,  is  valid  without  any  fur- 
ther consideration,  {rii) 

If  the  whole  credit  is  given  to  the  person  who  comes  in 
to  answer  for  another,  his  undertaking  is  not  collateral. 
Wiiere  one  person  procures  services  to  be  performed  for, 

{h)  17  111.  354;  15  111.  407  ;  18  111.  252;  7  Ves.  Jr.  341,  n.  3  ;  I  Alk.  12  ;  15 
Pick.  159.  See  2  Gilm.  614  ;  38  111.  208. 

(?)  17  111.  354,  433  ;  I  Sch.  &  LefT.  31 ;  lo  Ohio,  402  ;  12  How.  U.  S.  I34 ;  21 
Wend.  139.  See  18  111.  252;  22  ill.  63;  3I  111.  239;  35  111.  22;  41  111.  332  ;  50 
111.  216. 

(/)  44  111.  352.  See  27  111.  93.  112. 

[k)   2  Johns.  52  ;  17  111.  88  ;  28  111.  262. 

(/)  17  111.  8i;  100  111.  82. 

{in)   8  Johns.  29.  See  17  111.  505. 


I90  ASSUMPSIT. 


Special  pleas — Statute  of  frauds — Observations. 


or  goods  to  be  delivered  to,  another,  he  will  be  held  liable 
for  their  value  ;  (w)  but  if  services  are  performed,  or  goods 
sold,  on  the  credit  of  him  who  receives  them,  a  third  per- 
son who  verbally  agrees  to  be  responsible  for  the  price 
thereof  will  not  be  liable  in  an  action  on  his  promise.  The 
real  question  is,  in  such  case,  to  whom  was  the  credit 
given?  If  to  another  than  the  defendant,  he  is  not  lia- 
ble, (o) 

If  goods  purchased  were  charged  to  the  person  who 
bought  them,  this  is  strong  evidence  that  the  credit  was 
given  to  him,  but  it  is  not  conclusive,  and  may  be  rebut- 
ted, ip) 

Whether  an  undertaking  is  original  or  collateral  is  to  be 
determined,  not  from  the  particular  words  used,  but  from 
all  the  circumstances  of  the  transaction,  (g) 

Where  the  moving  consideration  for  the  promise  is  the 
liability  of  the  third  person,  the  promise  must  be  in  writ- 
ing ;  (r)  and  a  consideration  is  necessary  to  support  any 
l^romise,  whether  in  writing  or  not.  (s) 

A  verbal  promise  to  accept  or  pay  an  existing  or  non- 
existing  bill  of  exchange,  is  not  within  the  statute  of  frauds, 
and  is  valid.  (/) 

Where  a  person  enters  into  a  verbal  contract  with  an- 
other, for  the  benefit  of  a  third  person,  such  third  person 
may  maintain  an  action  for  a  breach  of  the  contract,  and 
such  a  contract  is  not  within  the  statute  of  frauds,  (u)  And 
where  A.  owes  B.,  and  B.  owes  C,  and  it  is  agreed  among 
them  that  the  debt  from  B.  to  C.  shall  be  cancelled,  and  that 

(n)  41  111.  213  ;  24  111.  i;86 ;  50  111.  412.  See  I  Scam.  58 ;  17  111.  88 ;  31  111. 
239;  54  111.  179;  69  111.  639;  88  111.  257,  561. 

(0)  41  111.  213;  85  111.  162;  73  111.  593;  69  111.  401  ;  I06  111.  433. 

(/)  50  111.  412;  100  111.  82. 

(^)  17  111.  88;  25  111.  331;  87  111.  18;  78  111.  487.  462;  97  111.  439. 

(7-)  I  Scam.  58;  17  111.  88,  505.  See  28  111.  262;  88  111.  424;  114  111.  52. 

(s)   17  111.  88,  505  ;  71  111.  121  ;  78  111.  606;  75  111.  II  ;  17  Bradw.  399. 

(t)   48  111.  36.  See  34  111.  319 ;  35  111.  424. 

[te)  17  111.  505  ;  19  111.  88  ;  4  Gilm.  40 ;  10  W'i^.  422 ;  Pars.  Con.  302,  307, 
308,  and  notes  m  and  7u  ;  58  111.  232;  88  111.  49  ;  107  111.  87, 


ASSUMPSIT.  191 


Special  pleas — Fraud. 


A.  shall  pay  his  debt  to  C,  the  agreement  is  binding,  al- 
though not  in  writing,  (v) 

The  cases  relating  to  the  statute  of  frauds,  decided  in  the 
Supreme  Court  of  Illinois,  and  not  already  cited,  are  given 
in  the  note  below,  (za)  Many  of  these  have  relation  to 
that  branch  of  the  statute  which  refers  to  contracts  concern- 
ing lands. 

Ao.  85.     J^/ca  of  frail  d  and  ciraimvention  in  obtaining 
execution  of  instrument. 

{First  flea,  non  assumpsit,  as  ante.  No.  66;  second  -plea 
as  in  JVo.  70,  ante,  to  the  asterisk,  and  then  proceed :)  that 
the  several  supposed  causes  of  action  in  the  said  declara- 
tion mentioned  are  one  and  the  same,  to  wit,  the  supposed 
cause  of  action  in  the  first  count  of  the  said  declaration 
mentioned,  and  not  different  causes  of  action  ;  and  that  the 
execution  of  the  writing  or  supposed  promissorj^  note  in 
that  count  mentioned  was  obtained  from  the  defendant,  by 
the  plaintifi\  {or,  if  the  action  is  by  an  assignee,  say_  "bv 
the  said  J.  K.,"  the  payee,  or  by  the  beneficiary,^  by  fraud 
and  circumvention,  that  is  to  say,  that  {here  set  forth  the 
facts  constituting  the  fraud,  and  that  the  defendant,  con- 
fiding, etc.,  executed  the  zvriting,  etc. — see  next  for  )n — ). 
And  this,  etc.  {^conclude  with  a  verification,  as  in  No.  70, 
ante.) 

No.  '^6.  Plea  of  fraud — In  action  by  assignee  of  note, 
plea  by  surety  that  execution  of  note  was  obtained  from 
him  by  fraud  of  payee  and  principal,  [x) 

(First  plea,  non  assumpsit,  as  ante,  TVo.  66.)  And  for 
a  further  plea  in  this  behalf,  the  defendant  E.  F.  says  that 
the  plaintiff  ought  not  to  have  his  aforesaid  action  against 
him  the  said  E.  F.,  because  he  says,  that  the  several  sup- 
posed causes  of  action  in  the  said  declaration  mentioned 


{v)  26  111.  232.  See  4  Giim.  40;  17  III.  505;  19  111.  8S;  21  111.  194;  i 
Allen,  (Mass.    405. 

(Ti')  Breese,  79;  i  Scam.  209,  296,  305;  3  Scam.  564;  13  III.  227,  529;  15 
111.  519;  i6]il.  373,  538;  17  111.  354;  25111.  300;  30  111.  i9S;33lIl.i95,  316; 
38  111.  430:  39  111.  440;  40  111.  150;  41  111.  9^,  466;  44  111.  16S,  367;  47  111. 
88;  49  111.  31;  50  111.  232;  51  111.  45S. 

(x)  26  111.  294. 


192  ASSUMPSIT. 


Special  pleas — Fraud — Replication. 


are  one  and  the  same,  to  wit,  the  supposed  cause  of  action 
in  the  first  count  of  the  said  declaration  mentioned,  and  not 
different  causes  of  action  ;  and  that  the  execution  of  the 
writing  or  supposed  promissory  note  in  that  count  men- 
tioned was  obtained  from  him  the  said  E.  F.,  by  the  said 
J.  K.  {the  -payee^  and  the  said  C,  D.,  {the  p7-incipal,  and 
co-defendant,^  by  the  use  of  fraud  and  circumvention,  that 
is  to  say,  that  the  said  J.  K.  and  C.  D.,  colhiding  to  injure 
and  defraud  the  said  E.  F.,  before  the  execution  of  the  said 
writing,  to  wit,  on  the  said  {date  ofnote),  in  the  county 
aforesaid,  falsely  and  fraudulently  represented  to  the  said 
E.  F.  that  if  he  would  execute  the  said  writing  as  a  surety 
for  the  said  C.  D.,  one  L.  M.  would  also  execute  the  same 
as  a  co-surety  ;  and  the  said  J.  K.  and  C.  D.  then  and  there 
falsely  and  fraudulently  promised  the  said  E.  F.  that  the 
said  writing  should  not  be  delivered  to  or  received  by  the 
said  J.  K.  unless  the  said  L.  M.  should  so  execute  the  same 
as  aforesaid;  and  thereupon  the  said  E.  F.,  confiding  in 
the  false  and  fraudulent  representation  and  promise  afore- 
said, then  and  there  executed  the  said  writing  as  a  surety 
for  the  said  C.  D.,  and  not  otherwise,  and  without  any  con- 
sideration whatsoever :  And  the  said  E.  F.  further  says, 
that  thereupon  the  said  writing  was  by  the  said  C.  D.  then 
and  there  fraudulently  delivered  to  the  said  J.  K.,  and  by 
him  fraudulently  received,  although  the  said  L.  M.  did  not 
nor  would  then  or  at  any  other  time  execute  the  said  writ- 
ing as  a  co-surety  as  aforesaid,  or  otherwise.  And  this, 
etc.  {conclude  with  a  verification^  as  in  No.  70,  ante.) 

No.  87.     Replication  to  No.  85  or  No.  86,  denying  that 
execution  of  instrument  zvas  obtained  by  fraud. 

{As  in  No.  71,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  execution  of  the  said  promissory  note  was  obtained 
fairly,  and  not  b}^  the  fraud  or  circumvention  of  the  plaint- 
iff*, [or,  if  the  action  is  by  an  assignee,  "of  the  said  J.  K.,") 
in  manner  and  form  as  the  defendant  {or  "the  said  E.  F.") 
has  above  in  that  plea  alleged  :  And  this  the  plaintifif  prays 
may  be  inquired  of  by  the  country,  etc. 

A  plea  which  attempts  to  set  up  fraud  should  aver  a 
scienter;   {y)  but  it  would  seem  that  an  averment  that  the 

(j)  23  111.  4S0;   16  Texas,  335;  17  Ark.  445. 


ASSUMPSIT.  19: 


Special  pleas — Fraud — Observations. 


plaintiff  "  falsely  and  fraudulently  represented,"  etc.,  is 
sufficient,  (z) 

It  is  held  that  the  burden  of  charging,  as  of  proving, 
fraud  is  on  the  party  alleging  it ;  and  that  while  it  is  not 
necessary  or  proper  that  he  should  spread  out,  in  his  plead- 
ings, the  evidence  on  which  he  relies,  he  must  aver  fully 
and  explicitly  Xho^  facts  constituting  the  alleged  fraud,  and 
not  mere  conclusions,  (a)  But  it  seems  that  at  common 
law  it  is  in  general  unnecessary  to  state  the  particulars  of 
fraud,  at  least  in  a  replication,  {b) 

Fraud  must  always  be  proved ;  the  law  never  presumes 
it.  {c)     It  may,  however,  be  proved  by  circumstances,  {d) 

Fraud  may  consist  in  making  a  false  representation,  with 
the  knowledge  at  the  time  that  it  is  false,  and  with  a  design 
to  deceive  and  defraud,  or  in  the  willful  concealment  of 
the  truth  for  a  similar  purpose,  ie)  It  can  not  exist  with- 
out an  intention  to  deceive.  [/) 

Fraud  vitiates  all  acts,  as  between  the  parties  to  such 
acts,  and  is  cognizable  in  a  court  of  law,  as  well  as  in 
equity,  {g) 

It  is  not  every  false  affirmation  that  amounts  to  a  fraud. 
A  knowledge  of  the  falsehood  of  the  representation  must 
rest  with  the  person  making  it,  and  he  must  use  some 
means  to  deceive,  to  make  it  a  fraud.  {Ji) 

Where  a  transaction  is  tainted  with  fraud,  as  between  the 

(:)    i,Z  III.  466  ;    I  Chit.  PI.  338. 

ia)  44  Barb.  (N.  Y.);  5  Amer.  L.  R.  512  (N.  S.)  ;  17  Ark.  445  ;  11  Iiid. 
337;  79  111.  96;  70  III-  34;  75  111.  62. 

[b)  I  Chit.  PI.  502;   2  Swan's  Pr.  742. 

(c)  27  111.  426;  6  Ind.  176  ;   I  Chit.  PI.  204. 

{d)   51  111.  324;   49  111.  62  ;   32  III.  130;    75  111.  143,  367. 

(e)  Breese,  59;  i  Scam.  344;  39  111.  195;  49  111.  416.  See  4  Scam.  569; 
36  III.  109,  2  Kent's  Com.  490;   105  111.  496. 

(/)   I  Scam.  499  ;    59  111.  375  ;  85  111.  406 ;  83  Til.  426. 

{S)  79  111-  92;  3  Scam.  113;   I  Glim.  70;  5  Gilm.  573;    15  111.  242. 

(/«)  Breese,  302;  3  Scam.  34;  37  111.  260;  53  111.  466.  See  31  111.  404.;  33 
I"-  238,  355  ;  80  111.  477  ;  72  111.  513;  85  111.  264,  406;  89  111.  29. 

13 


194  ASSUMPSIT. 


Plea  of  fraud — Observations,  etc. 


parties  to  the  fraud,  a  court  will  not  assist,  either,  but  will 
leave  them  in  the  position  where  they  have  placed  them- 
selves. (/) 

Where  fraudulent  representations  are  made  with  the  tn- 
tention  to  deceive  and  defraud  the  person  to  whom  the}-  are 
made,  and  he  thereby  suffers,  the  person  making  such  rep- 
resentations will  be  liable.  {J)  But  if  such  false  repre- 
sentations are  made  in  the  belief  that  they  are  true,  and  the 
person  making  them  has  no  reason  to  believe  them  to  be 
false,  they  will  not  be  held  fraudulent,  and  will  not  render 
him  liable.  (X*) 

Evidence  of  oral  representations  made  by  a  party  before 
the  making  of  a  written  contract,  may  be  introduced  to 
show  fraud ;  (/)  and  a  fraudulent  intent  may  be  found  from 
the  act  of  a  purchaser  after  the  sale,  {m) 

All  the  members  of  a  partnership  are  liable  for  the  fraud 
of  one  of  them,  or  of  their  agents  in  the  course  of  their 
employment,  in  the  sale  of  partnership  property,  {n) 

Under  the  statute  of  Illinois,  the  plea  of  fraud  in  obtain- 
ing the  making  of  the  instrument  is  good  against  an  inno- 
cent assignee,  (o) 

The  plea  of  fraud  in  obtaining  the  execution  of  a  note 
and  mortgage,  may  be  set  up  as  well  in  a  suit  by  an  as- 
signee as  in  a  suit  by  the  person  to  whom  they  were 
made,  [j)) 

Where  the  question  of  fraud  is  one  of  intent,  it  is  to  be 
determined  by  the  jury,  [q) 

The  fraud  which  will  vitiate  a  note,  in  the  hands  of  an 
innocent  assignee,  must  be  fraud  practiced  in  obtaining  the 

[i)  21  111.  152;  22  111.  38.     See  71  III  20, 

{j)  2  Ind.  457;  37  III.  25o.     See  39  111.  195  ;  88  TH.  426. 

[k)  2  Ind.  457  ;    I  Ind.  176  ;  89  111.  29;    loS  111.  602. 

(I)  22  Pick.  546. 

(m)  41  111.  192. 

(«)   I  Metcalf,  560. 

{0)  Rev.  Stat.  (1877)  6S1  ;   i  Scam.  103,  583;  3  Scam.  256;  72  111.  218. 

(/)  7  Ind.  250;  72  111.  616. 

[q)   7  Ind.  17;    109  III.    541. 


ASSUMPSIT  195 


Plea  of  fraud — Observations,  etc. 


execution  of  the  note.  Fraud  in  respect  to  the  con  iidera- 
tion,  or  in  the  contract  on  which  the  note  is  given,  is  not 
sufficient,  (r) 

Where  one  who  was  sued  on  a  promissory  note  pleaded, 
not  that  he  did  not  know  he  was  signing  such  a  note,  but 
merely  that,  by  the  terms  of  an  instrument  attached  to  the 
note  when  it  was  executed,  it  was  only  to  be  paid  on  a  cer- 
tain contingency,  which  did  not  happen,  and  that  this  in- 
strument was  wrongfully  detached  from  the  note  alter  its 
execution, — it  was  held  that  these  facts  did  not  constitute 
fraud  in  obtaining  the  execution  of  the  note,  but  fraud  per- 
petrated after  its  execution,  and  therefore  could  not  avail  as 
a  defense  against  an  assignee  before  maturity.  (5)  But  in 
a  case  where  it  appeared  that  the  defendant,  under  circum- 
stances which  showed  no  lack  of  reasonable  caution  on  his 
part,  signed  a  paper  which  he  did  not  know  was  a  note  at 
all,  but  was  induced  to  believe  was  an  instrument  of  an  en- 
tirely different  character,  and  it  was  probable  that  the  note 
sued  on  was  embraced  in  the  paper  which  the  defendant 
executed,  and  was  afterwards  detached  and  assigned, — the 
defense  of  fraud  and  circumvention  was  sustained  against 
an  assignee  before  maturity.  (/) 

Diligence  required  of  maker  of  note. — The  mere  fact 
that  a  person  can  read  will  not  cut  him  off  from  alleo-ina, 
evt-n  against  an  assignee  before  maturity,  that  the  execu- 
tion of  a  promissory  note  made  by  him  was  obtained  by 
Iraud  and  circumvention.  But  he  who  signs  a  paper  should 
use  reasonable  and  ordinary  precautions  to  avoid  imposi- 
tion ;  if  able  to  read  readily,  he  should  examine  the  instru- 
ment ;  if  unable  to  read,  or  able  only  to  read  with  difficulty, 
he  may  have  it  read  to  him  by  some  one  present.  He  can 
not  act  recklessly,  disregarding  all  the  usual  precautions, 

(r)  I  Scam.  103,  583 ;  45  111.  25. 

[s)  54  111.  213  ;  85  111.  281;  84  111.  271  ;  71  111.  129. 
(0  54  111.  196;  70  111.  322. 


196  ASSUMPSIT. 


Plea  of  fraud — Observations,  etc. 


and  then  interpose  the  defense  of  fraud  as  against  the  as- 
signee. («) 

Diligence  required  of  assignee  of  note. — The  assignee, 
equally  with  the  maker,  is  bound  to  use  proper  diligence. 
Where  strangers  offer  to  sell  promissory  notes,  under  cir- 
cumstances which  ought  to  arouse  suspicion,  a  purchaser 
of  such  notes,  who  could  ascertain  the  truth  in  regard  to 
them  by  inquiring  of  the  supposed  maker,  will  be  deemed 
to  have  acted  without  due  caution  if  he  fails  to  make  such 
inquiry,  {v) 

If  fraud  and  circumvention  are  used  in  procuring  the 
execution  of  a  note,  and  the  payee  is  a  party  to  such  fraud 
and  circumvention,  the  note  is  void.  It  is  otherwise  if  he 
is  free  from  any  participation  in  the  fraud,  {w') 

If  the  party  defrauded  acquiesces  in  or  confirms  the  con- 
tract, with  full  knowledge  of  the  fraud,  others  not  defrauded 
or  injured  can  not  avoid  the  contract  for  him.  i^x)  Advan- 
tage can  not  be  taken  of  a  fraud  except  by  the  party  de- 
frauded or  injured,  (jk) 

See  further,  as  to  fraud  generally,  the  additional  Illinois 
cases  noted  below,  iz) 

A  surety  or  guarantor  cannot  interpose  the  fraudulent  or 
false  representations  of  his  principal  as  a  defense  to  the  pay- 
ment of  a  note  or  bond,  without  connecting  the  payee  with 
such  representations,   {a) 

[11)  54  111.  196;  71  111.  552,  456;   13  Biadw.  166,  206;   107  111.  284. 

{v)  Ibid. 

(w)   26  111.  494, 

{x)   16  111.  214. 

{y)  16  111.  214;  31  111.  380;  44  111.  6S  ;  47  in.  79;  2  Ohio,  182  ;  10  Humph. 
577;  2  Geo.  12;  18  Ala.  2S0 ;  2  Duer,  (N.  Y.)  206;  8  Ind.  352;  13  Mass. 
513. 

{z)  2  Scam.  22;  4  Scam.  387;  i  Gilm.  310;  11  111.  301 ;  13  111.  33  ;  14  111. 
375;  15  111.92,  148,  576;  16  111.  47;  17  111.  239;  22  111.  45,  381,  415  ;  23  III. 
39,  416,  580,  604 ,  24  111.  529  ;  25  111.  603  ;  26  111.  36,  358 ;  27  111.  23,  53  ;  28 
111.  319,  495;  29  111.  44^;  31  111.  404,  533;  35  111.  222;  37  111.  123,  172,  341; 
38  111.  9;  39  111.  603;  40  III.  442;  42  111.  78,  417;  43  111.  29,  403;  44  111.  288; 
47  111.  99,  216. 

(a)   89  111.  243;  80  111.  233;  59  111.  413;  85  111.  218. 


ASSUMPSIT.  197 


Special  pleas — Plea  of  usury. 


No.  '^'^.     Plea  of  usury. 

(^First  flea,  non  assumpsit,  as  ante,  No.  66.')  And  for 
a  further  plea  in  this  behalf,  the  defendant  says  that -the 
plaintiff' ought  not  to  have  his  aforesaid  action  against  him, 
the  defendant,  for  any  greater  sum  than  five  thousand  dol- 
lars, (ythe  sum  actually  received  by  the  defendant,)  because 
he  says,  that  the  several  supposed  causes  of  action  in  the 
said  declaration  mentioned  are  one  and  the  same,  to  wit,  the 
supposed  cause  of  action  in  the  first  count  of  the  said  decla- 
ration mentioned,  and  not  different  causes  of  action  ;  and 
that  before  the  making  of  the  supposed  promissor}'  note  in 
that  count  mentioned,  to  wit,  on,  etc.,  in,  etc.,  it  was  corruptly 
and  unlawfully  agreed  between  the  plaintiff  and  the  defend- 
ant that  the  plaintiff  should  lend  to  the  defendant  the  said 
gum  o{  five  thousand  dollars,  and  should  forbear  the  same 

to  him  for  the  space  of months  from  that  day,  and  that 

the  defendant,  lor  the  loan  and  forbearance  of  the  said  sum 
of  money  as  aforesaid,  should  pay  to  the  plaintiff,  at  the 
end  of  that  space  of  time,  the  sum  ol  five  hundred  dollars, 
making,  with  the  said  sum  of  money  so  to  be  lent  to  the  de- 
fendant as  aforesaid,  the  sum  oifive  thousand  five  hundred 
dollars  in  the  said  note  mentioned,  and  also  that  the  de- 
fendant should  then  pay  to  the  plaintiff  interest  on  the  last- 
mentioned  sum  of  money,  from  the  day  first  aforesaid,  at 
the  rate  of  ten  per  centum  per  annum,  and  that  to  secure 
the  payment  as  aforesaid  of  the  last-mentioned  sum  of 
money  and  the  said  interest,  the  defendant  should  make 
and  deliver  his  promissory  note  therefor  to  the  plaintitf : 
And  the  defendant  further  says,  that  thereupon,  on  the  day 
first  aforesaid,  in  pursuance  of  the  said  corrupt  and  unlaw- 
lul  agreement,  the  plaintiff  there  lent  to  the  defendant  the 
said  sum  of  five  thousand  dollars;  and  that  to  secure  the 
payment  thereof  and  of  the  said  sum  oi  five  hundred  dol- 
lars as  aforesaid,  with  interest  on  both  those  sums  of  money 
as  aforesaid,  he,  the  defendant,  in  further  pursuance  of  the 
said  corrupt  and  unlawful  agreement,  then  and  there  made 
and  delivered  to  the  plaintiff  the  said  promissory  note  in  the 
said  first  count  mentioned,  and  the  plaintitf  then  and  there 
received  the  said  note  of  the  defendant,  in  pursuance  of  the 
said  corrupt  and  unlawful  agreement,  and  lor  the  purpose 
aforesaid.     And  the  defendant  avers,  that  the  said  sum  of 


198  ASSUMPSIT. 


Special  ple.is — Usury — Replication — Observations. 


five  hundred  dollars,  and  the  interest  aforesaid  of  the  said 
suni  of  five  thousand  five  hundred  dollars,  exceed  the  rate 
of  eight  dollars  for  the  forbearing  of  one  hundred  dollars  for 
one  year,  contrary  to  the  form  of  the  statute,  etc.  By 
means  whereof,  and  by  force  of  the  said  statute,  the  said 
note,  so  far  as  the  amount  thereof  exceeds  the  said  sum  of 
five  thousand  dollars,  was  and  is  wholly  void  in  law.  And 
this,  etc.  {conclude  with  a  verification,  as  in  ]\o.  70,  ante.) 

The  averments  of  the  plea  will  of  course  vary  according 
to  the  circumstances  of  the  case.  The  replication  may  be 
as  follows : 

A^o.  89.     Rcfilication  to  No.  88,  that  note  was  given  on  a 
h'i^al  contract. 

i^As  in  JSfo.  71,  ante,  to  the  asterisk.,  and  then  -proceed:) 
that  the  said  promissory  note  was  made  for  a  good  and 
legal  consideration,  and  not  in  pursuance  of  the  corrupt 
and  unlawful  agreement,  or  for  the  purpose,  in  the  said 
second  plea  mentioned,  in  manner  and  form  as  the  defend- 
ant has  above  in  that  plea  alleged  :  And  this  the  plaintiff 
prays  may  be  inquired  of  by  the  country,  etc. 

The  act  of  1879 — in  relation  to  interest  and  usury — pro- 
vides that  parties  to  contracts  may  agree  upon  any  rate  of 
interest  not  exceeding  eight  per  cent,  per  annum;  and  that  if 
any  greater  rate  shall  be  reserved,  the  whole  of  the  interest 
shall  be  forfeited,  and  only  the  principal  sum  shall  be  recov- 
ered. 

"  The  defense  of  usury  shall  not  be  allowed  in  any  suit, 
unless  the  person  relying  upon  such  defense  shall  set  up  the 
same  by  plea,  or  file  in  the  cause  a  notice  in  writing,  stating 
that  he  intends  to  defend  against  the  contract  sued  upon  or 
set  off,  on  the  ground  that  the  contract  is  usurious."     {d) 

The  defense  of  usury  is  regarded  as  in  the  nature  of  a  penal 
action,  and  not  only  is  great  strictness  required  in  the  plead- 
ings, but  the  contract  must  be  proved  as  alleged,  by  a  clear 
preponderance  of  the  evidence,     [b) 

(a)   I  Starr  &  Curtis'  An.  Slat.  1357.     See  form  of  plea,  65  111.  532. 
(/.)  83  111.  519. 


ASSUMPSIT.  199 


Special  pleas-=— Usury — Observations. 


Usury  is  not  to  be  presumed  in  any  case.  It  must  be  made 
to  appear  from  the  evidence  in  the  case.  If  it  appears  on  the 
face  of  the  instrument  sued  on,  no  other  proof  would  seem 
necessary,  provided  usur^-  has  been  set  up  and  is  relied  on  by 
way  of  plea,  or  a  notice  filed  with  the  general  issue,  [d) 

The  plea  should  only  profess  to  answer  so  much  of  the 
declaration  or  count  as  it  really  does  answer,  (e) 

Under  a  statute  which  provided  a  penalty  of  three-fold 
the  amount  of  the  interest,  and  that  the  defendant  should 
recover  costs,  it  was  held  that  the  defendant,  in  a  suit  ap- 
pealed from  a  justice  of  the  peace  to  the  circuit  com-t,  could 
not  on  the  trial  in  that  court  set  up  for  the  first  time  the  de- 
fense of  usury — that  he  ought  to  have  interposed  it  before 
the  justice,  or  at  all  events  to  have  given  the  plaintiff  notice 
of  it  before  the  trial  in  tiie  circuit  court,  (y*) 

In  a  case  under  the  same  statute,  providing  a  penalty  as 
above  mentioned,  the  court  said  that  this  defense  was  in  the 
nature  of  a  penal  action,  and  great  strictness  would  be  re- 
quired in  pleading  it,  and  that  the  plea  should  state  specific- 
ally the  amount  forborne,  the  time  of  forbearance,  and 
how  much  was  paid,  or  agreed  to  be  paid,  by  way  of  in- 
terest, (g) 

To  constitute  usury,  there  must  be  a  borrowing  and  lend- 
ing of  money,  or  the  forbearance  of  a  pre-existing  debt.  (/;) 

Discount,  or  the  taking  of  the  legal  rate  of  interest  in 
advance,  is  not  usury.  (/) 

Under  laws  declaring  usurious  contracts  void,  the  lender 
is  never  allowed  to  take  advantage  of  the  statute,  because 

{'/)  88  III.  56b,  1  Scim.  212;  ly  111.  132;  23  111.  167;  57  111.  13S. 
(e)  21  111.    106. 
(/)  2  Gilm.  3S9. 
(.?)  3  Scam.  329. 
(//)  Ibid. 

(i)  4  Scim.  21  ;  31  III.  490.  See  51  111.  4SS;  77  111.  525  ;  90  111.  152  ;  no 
111.  235,  390. 


200  ASSUMPSIT. 


Special  pleas — Usury — Observations. 


he  is  the  guilty  party  ;  but  the  borrower  may  do  so,  because 
he  is  not  a  farticefs  crimiiiis.  This  principle  is  applied 
to  every  contract,  declared  to  be  void  by  statute,  in  the 
making  of  which  but  one  of  the  parties  is  guilty  of  a  vio' 
lation  of  the  law.  ( /) 

An}''  contract  or  assurance  for  the  loan  or  forbearance  of 
money,  or  any  other  thinj,  upon  wliich  a  greater  rate  of 
interest  than  the  law  permits  has  been  directly  or  indirectly 
reserved,  discounted,  or  taken,  is  usurious,  {k)  The  stat- 
ute against  usury  can  not  be  evaded  by  a  substitution  ot 
securities.  (/) 

The  defense  of  usury  can  not  be  set  up  against  a  note  in 
the  hands  of  an  assignee  in  good  faith,  who  received  tlie 
note  before  its  maturity,  and  without  notice  of  the  usury.  (;«) 
But  if  a  note  tainted  with  usury  is  assigned  by  the  payee  to 
a  creditor,  as  collateral  security  for  a  pre-existing  debt, 
though  the  latter  is  a  holder  for  a  valuable  consideration, 
he  is  so  only  to  the  extent  of  the  debt  due  to  him ;  and  the 
same  defense  may  be  made  to  the  residue  ol  the  note  as  li 
it  had  not  been  assigned,  (w) 

Where  a  note  provides  that  if  it  is  not  paid  when  due  a 
greater  rate  of  interest  than  is  allowed  by  law  shall  be  paid 
l/om  that  time,  the  contract  will  not  be  considered  usuri- 
ous, (e?)  If  however  a  note  should  be  given,  due  at  its 
date,  or  in  a  short  time,  so  as  to  induce  the  belief  that  it 
was  only  designed  to  evade  the  statute,  it  would  be  deemed 
usurious,  {-p) 

A  note  made  payable  one  day  after  date,  and  if  not  paid 
when  due  to  draw  twenty  per  cent,  interest,  is  usurious,  if 
it  was  the  understanding  of  the  parties  that  it  should  not  be 

(y)  3Gilm.  547;  95  III.  493. 

{k)   1  Giltn.  690;    106  111.  99;    108  III.  633.     See  119  111.  467;    19  Bradw. 

430. 

(/)  45  "1.  i78;5oI!l.  54. 

(/«)  3  Scam.  38S;  n  111.  331,  3.57;  4-3  IH.  132- 

(«)  37  III-  331-    See  63  111.  482. 

{0)  91  111.  575;  26  111.  54;  35  III.  324;  S3  111.  416;  89  III.  123;  78  Til.  53. 

(/)  35  111.  324;  53  111-  416;  62  III.  461;  66  111.  532;  67  111.  96. 


ASSUMPSIT.  20I 


Special  pleas — Usury — Observations. 


paid  when  due,  but  should  draw  the  rate  of  interest  speci- 
fied, {q) 

If  there  is  no  design  to  evade  the  statute  against  usury, 
interest  at  a  rate  greater  than  the  legal  one  may  be  agreed 
to  be  paid  for  dela}'  in  the  payment  of  money  after  it  be- 
comes due,  though  no  certain  time  of  forbearance  is  agreed 
upon,  (r) 

It  is  not  presumed  that  the  purchaser  of  a  no.te  from  the 
payee,  a  bill-broker,  knew  that  the  transaction  in  which 
the  note  was  given  was  usurious,  merely  because  such 
broker  had  before  sold  other  notes  to  the  same  purchaser 
at  usurious  rates.  A  payee  of  a  note  may  3ell  it  at  such 
rate  as  he  may  choose,  {rr) 

In  equity,  a  creditor  defencant,  against  whom  his  debtor 
obtains  relief  on  the  ground  of  usury  in  the  contract,  for- 
feits only  so  much  interest  as  is  in  excess  of  the  amount 
allowed  by  law — upon  the  principle  that  he  who  seeks 
equity  must  do  equity  ;  (5)  but  a  creditor  complainant,  where 
the  transaction  is  shown  to  have  been  usurious,  forfeits  all 
interest.  (/) 

In  Illinois,  since  the  passage  of  the  act  of  1857,  usury 
voluntarily  paid  can  not  be  recovered,  {u)  or  even  when 
paid  by  means  of  a  sale  of  property  under  a  power  of  sale 
contained  in  a  mortgage,  {v)  nor  can  it  be  made  available 
under  a  plea  of  set-oft\  (w)  It  would  seem  however  to  be 
otherwise,  at  least  in  equity,  where  the  pa3'ment  was  com- 
pulsory, and  under  circumstances  where  the  debior  could 
not  make  the  defense,  {x) 

[q)  25  111.  218;  35  111.  324.     See  83  111.  226;  4  Bradw.  338. 
(?•)   26  111.  54;  20  Bradw.  536;  I9  Biadw.  623. 
{rr)   24  111.  345  ;  90  111.  152. 
(s)  35  111.  40.  186;  42  111.  256  ;  23  111.  561. 
[i)  37  111.  216.     But  see  32  111    13. 

(«)  24111.381;  2SIII.  519;  3^  111.  306,  504;   37  111.  333,  512;  39  111.  539; 
44  111.  103;  85  111.  102. 
(i-)  29  111.  184. 
{'o)  24  III.  3S1. 
{x)  40  111.  331. 


202  ASSUMPSIT. 


Special  pleas — Usury — Observations. 


But  although  money  voluntarily  paid  as  usury  can  not 
be  recovered,  still,  so  long  as  any  part  of  the  debt  remains 
unpaid,  the  debtor  may  insist  on  a  deduction  of  the  usury 
therefrom.  The  usury  received  is  considered  as  having 
been  extorted  by  means  of  the  debt,  and  is  to  be  applied  in 
part  payment  of  the  same,  (y) 

A  debtor,  on  settlement,  may,  if  he  chooses,  allow  interest 
on  annual  interest  due  and  unpaid,  and  this  will  not  render 
the  transaction  illegal,   (o) 

Where  A.  j  nd  others  give  their  note  to  B.,  to  satisfy  a 
debt  from  him  to  C,  and  the  note  is  usurious,  the  makers 
of  the  note  may  avail  themselves  of  the  defense  of  usury,  {a) 

Privies  as  well  as  parties  to  an  usurious  transaction  have 
a  right  to  take  advantage  of  the  statute  against  usury,  {d) 
But  one  creditor  can  not  raise  against  another  the  question 
of  usury  in  behalf  of  the  debtor,  [c) 

By  the  statute  of  Illinois,  interest  may  be  recovered  on  a 
sum  agreed  upon  as  due,  from  the  time  of  the  agree- 
ment, (d) 

A  plea  which  properly  avers  that  the  note  sued  on  was 
made  in  Iowa,  and  with  reference  to  the  law  of  that  state, 
where  the  parties  to  it  resided,  and  that  the  note  was  usuri- 
ous by  the  law  of  that  state,  is  good  ;  but  if  the  penalty  for 
reserving  usury,  by  the  law  of  Iowa,  goes  to  the  school 
fund,  that  part  of  the  law  will  not  be  enforced  by  a  court 
of  Illinois,  (e) 

A  contract  reserving  interest  at  any  rate  which  is  author- 
ized by  the  law  of  the  country  where  such  contract  is  made, 
or  where  it  is  to  be  performed  or  paid,  will  be  recognized 
and  enforced    in  a  court  of  another  countr}'-,   though  by 

(7/)  :;5  111.  40,  66;  37  111.  331  ;  44  111.  405  ;  77  111.  1S2,  525;  6o  111.  367  ;  62 
111.  461 ;  103  111.  600;  119  111.  467  ;  19  Bradw  430. 
(0)  87  111.  23;  95  111.  II;  97  111.  568;  109  111.  151. 
(a)   23  111.  561. 
{d)   22  111.  327;  45  111.  322,  462. 

(c)  37  111.  45;  I"  111-  328  ;  95  111-  493. 

(cf)  26  111.  54;  I  Starr  &  Curtis'  An.  Stat.  1356;  69  111.  521 ;  82  111.  134. 

(<f)  22  111.  606;  14  Bradw.  405. 


ASSUMPSIT.  203 


Special  pleas — Usury — Observations. 


the  law  of  the  latter  such  rate  of  interest  may  be  usuri- 
ous. (/) 

Where  a  note  is  made  payable  at  a  particular  place,  ic 
will  be  presumed  that  the  parties  intended  to  adopt  the  law 
of  that  place  in  respect  to  the  rate  of  interest,  (g-) 

A.  court  of  law  may  open  a  judgment  rendered  on  a  cog-- 
novit,  and  let  the  defendant  in  to  plead  to  the  merits,  where 
usury  is  alleged  to  constitute  a  part  of  the  amount  recov- 
ered— the  judgment  continuing  in  force,  for  the  securit}^  of 
the  plaintiff,  till  the  determination  of  the  issue,  when  it  may 
be  reduced,  or  set  aside,  if  the  verdict  shall  so  require.  {Ji) 

The  statute  ot  Anne  made  contracts  reserving  usurious 
interest  void,  but  the  Illinois  statute  of  1833  (and  1845)  did 
not,  and  the  rights  of  parties  under  the  two  statutes  were 
very  different.  (/) 

The  statute  of  Illinois  of  1849  attached  no  penalty  to  an 
usurious  transaction ;  it  merely  modified  the  contract,  so 
that  the  defendant  should  be  bound  to  pay  only  the  prin- 
cipal sum,  with  legal  interest.  (_/') 

The  sixth  section  of  the  interest-law  of  1845  (Illinois)  by 
its  terms  only  gave  an  action  for  the  recovery  of  three-fold 
the  amount  of  the  interest  paid  on  an  usurious  contract, 
and  did  not  provide  a  defense  against  usury  contracted  for 
and  unpaid,  {k) 

The  fourth  section  of  the  act  of  1845,  above  mentioned, 
provided  for  a  forfeiture  of  three-fold  the  amount  of  the  in- 
terest reserved,  if  interest  at  a  higher  rate  than  six  per  cent, 
should  be  received,  or  agreed  to  be  paid.  This  act  was 
amended  by  the  act  of  1849,  which  allowed  the  reserving 
of  interest,  in  contracts  for  money  loaned,  at  any  rate  not 
exceeding  ten  per  cent,  per  annum.     The  act  of  1857  al- 

(/  1   17  111.  328.     See  37  111.  45 ;  52  111.  I30;  60  111.  289 ;  119  111.  467. 

{g)  Ibid. 

{h)  22  111.  475. 

(?)  4  Scam.  21 ;  R.  L.  348  ;  R.  S.  294. 

(y)   21  111.  106  ;  Gross'  Stat.  370. 

(A:)   27  111.  15;  R.  S.  295. 


204  ASSUMPSIT. 


Special  pleas — Plea  of  set-off. 


lows  parties  to  contract  for  the  payment  of  interest  at  any 
rate  not  exceeding  ten  per  cent,  per  annum,  on  "money 
loaned  or  in  any  manner  due  and  owing,"  and  provides  that 
all  the  interest  reserved  shall  be  forfeited,  in  case  a  higher 
rate  is  agreed  upon — repealing  all  other  laws  providing 
penalties  for  the  reserving  of  usurious  interest.  (/) 

The  act  of  May  24th,-  1879,  (Illinois,)  (w)  forbids 
corporations  to  interpose  the  defense  of  usury ;  and  this 
statute  applies  to  insurance  companies  as  well  as  to  other 
corporations.  («) 

The  contract  is  governed  b}'^  the  law  in  force  at  the  time 
the  contract  was  made.  {0) 

See  further,  as  to  the  law  relating  to  usury,  in  Illinois, 
the  additional  cases  noted  below.  (^) 

JVo.  90.     Plea  of  set-off. 

[First  flea  ^  non  assumpsit,  as  ante,  No.  66;  second  plea 
as  in  No.  70,  ante,  to  the  asterisk,  and  then  -proceed:^  that 
the  plaintiff  w^as  before  and  at  the  time  of  the  commence- 
ment of  this  suit,  and  still  is,  indebted  to  him,  the  defend- 
ant, in  the   sum  of  dollars,  for  {Jiere  set  forth  the 

matter  or  matters  of  set-off;  demands  such  as  would  be 
recoverable  under  common  counts  may  be  stated  as  in  such 
counts — see  consolidated  common  counts,  ante.  No.  2  ;  de- 
mands by  virtue  of  specialties,  records  and  special  con- 
tracts {a)  should  be  set  forth  specially;)  which  said  sum 
{or  "sums")  of  money  so  due  from  the  plaintiff  to  the  de- 
fendant, as  aforesaid,  exceeds  [or  "exceed")  the  damages 
sustained  by  the  plaintiff  by  reason  of  the  non-performance 
by  the  defendant  of  the  several  supposed  promises  in  the 
said  declaration  mentioned,  and  out  of  which  said  sum  [or 
"sums")  of  mone}'-  the  defendant  is  ready  and  willing,  and 

{l\     31  111.  83;  86  111.  197,  513. 

(m)  Laws  of  1879,  p.  186,  Bradwell's  Ed.  145. 

[n)   28  111.  260;  2  Brad  well,  402. 

(0)  31  111.  83. 

(/)  106  111.  99,  452;  108  111.  633;  105  111.  540;  100  111.  611  ;  103  111.  362. 
106  111.  549;  loi  111.  523;  113  111.  382;  27  111.  301;  28  Hi.  260,  352;  39  111. 
521  ;  40  111.  519;  41  111.  31 ;  4^  111.  331 ;  52  111.  174;  53  111.  126;  76  111.  154  . 
77  111.  182. 


ASSUMPSIT.  205 


Special  pleas — Set-off — Replication — Observations. 

hereby  offers,  to  set  off  and  allow  to  the  plaintiff  the  full 
amount  of  the  said  damages.  And  this,  etc.  [conclude  with 
a  verification^  as  in  No.  70,  ante.) 

By  the  Illinois  practice-act,  (1872,)  the  defendant  is  re- 
quired to  file  with  his  plea  or  notice  of  set-off  a  copy  of  the 
instrument  or  account  upon  which  he  intends  to  rely,  {b) 

It  is  to  be  observed,  that  the  i8th  section  of  the  act  above 
mentioned  provides  that  "demands  upon  simple  contracts 
may  be  set  off  against  demands  upon  sealed  instruments, 
judgments  or  decrees." 

See  the  observations  under  the  form  of  notice  of  set-off, 
ante^  No.  6%. 

No.  91.     Replication  to  No.  90 — nil  debet. 

[As  in  No.  71,  ante,  to  the  asterisk.,  and  then  proceed:) 
that  he,  the  plaintiff,  was  not  nor  is  indebted  to  the  defend- 
ant, in  manner  and  form  as  the  defendant  has  above  in  that 
plea  alleged  :  And  this  the  plaintiff  prays  may  be  inquired 
of  by  the  country,  etc. 

The  plaintiff  may  reply  nil  debet  to  a  plea  of  set-off  on 
simple  contract,  but  if  the  set-off  is  on  a  specialty,  or  a 
judgment  or  other  matter  of  record,  he  should  reply  no7i 
est  factum,  nul  tiel  record,  or  payment,  etc.  ;  (c)  or  to  a 
plea  setting  up  both  a  debt  of  record  and  a  debt  on  simple 
contract,  he  may  reply  mil  tiel  record  as  to  the  former,  and 
nil  debet  as  to  the  latter,  in  the  same  replication  ;  {d)  and 
in  other  instances  the  replication  may  contain  several  dis- 
tinct answers  to  different  parts  of  the  plea.  (5)  Any  mat- 
ter may  be  replied  which  a  defendant  in  an  action  mio-ht 
plead,  {/)  not  excepting  a  counter  demand.  (^) 

{b)     Rev.  Stat.  (1874)  778;  Rev.  Stat.  (1877)  738;  61  111.  134. 

(c)  I  Chit.  PI.  502 ;   I  East,  369. 

(rf)  I  Chit.  PI.  499,  562;  3  Chit.  PI.  935;  I  East,  369. 

(c)  1  Chit.  PI.  499,  562;  3  Chit.  PI.  1158,  1159;   I  East,  ^6q. 

(/)  1  Chit.  PI.  502.  o         ^-^  ,^^ 

is")  16  Ind.  303. 


2o6  ASSUMPSIT. 


Special  pleas — Set-off — Observations. 


This  defense  is  in  the  nature  of  a  cross-action,  and  the 
plea  must  describe  the  debt  intended  to  be  set  off,  with  the 
same  certainty  as  a  declaration  for  the  like  demand,  {h) 

A  plea  of  set-off  so  much  resembles  a  declaration,  that 
two  paits  of  such  a  plea  are  considered  as  two  counts  in  a 
declaration,  and  if  one  part  is  good,  a  general  demurrer  to 
the  whole  is  bad.  (/) 

This  defense  exists  only  by  virtue  of  the  statute,  as  at 
common  law  a  defendant  could  not  set  off  his  demand 
against  that  of  the  plaintiff.  {J)  The  statute  is  permissive, 
and  not  compulsory,  and  the  defendant  may  waive  his  right, 
and  bring  an  action  against  the  plaintiff,  {k) 

Under  this  plea  the  defendant  can  only  introduce  by  way 
of  set-off  such  demands  as  were  existing  causes  of  action 
in  his  favor  at  the  time  the  suit  was  instituted.  He  is  not 
permitted,  after  he  has  notice  of  the  suit,  to  buy  up  claims 
against  the  plaintiff,  and,  by  producing  them  on  the  trial, 
defeat  the  plaintiff's  action,  and  subject  him  to  costs.  (/) 

Unliquidated  damages,  arising  ex  contractu,  may  be  set 
off  in  an  action  of  assumpsit,  {m)  This,  however,  can  not 
be  done  where  the  claim  for  unliquidated  damages  is  to- 
tally unconnected  with  the  plaintiff's  cause  of  action.  {ii) 

A  separate  demand  can  not  be  set  off  against  a  joint  de- 
mand, nor  a  joint  debt  against  a  separate  debt,  {o)  Only 
such  demands  can  be  set  off  as  are  mutual  between  the 
parties  to  the  suit,  or  the  parties  in  interest,  (^)  and  in 
their  own  right,  {q) 

{h)  I  Chit,  PI.  495;  72  111.  253;  5  Bradw.  449;  86  111.  560;  3  Scam.  538;  i 
Gilm.  649. 

(?)  I  Chit.  PI.  496, 

(/)  I  Rawle,  293 ;  Babb.  on  Set-off,  i ;  i  Scam.  213  ;  100  111.  82, 

(/C>)  8  Watts,  39,  9  Watts,  179  ;  2  Camp.  594;  5  Taunt.  148;  I  Scnm.  213. 

(/)  3  Scam.  538;  2  Stephen's  N.  P.  538;  15  111.  230;  16  111.  28;  87  111.  570; 
117  111.  458. 

(w)   I  Gilm.  15  ;  I  Scam.  462  ;  3  Scam.  298  ;  16  Ind.  365  ;  70  111.  91. 

(n)  5  Gilm.  273;  3  Gilm.  227  ;  16  Bradw.  555  ;  Ii8  111.  613;  32  111.  207  ;  42 
111.  500;  48  111.  408. 

(o)  I  Chit.  PI.  571  ;  15  111.  28;  II  111.  28,  644;  ID  Iowa,  23;  5  Min.  155. 

(/)  II  111.  28,  644;  16  111.  28,  269,  489;  4  Gilm.  136;  5  Gilm.  273;  Breese, 
143;  36  111.  49,  53;  105  111.  470;  92  a.  S.  362. 

{,/)  16  111.  269 ;  15  111.  231.     See  85  111.  503. 


ASSUMPSIT.  207 


Special  pleas — Set-ofF — Observations. 


In  a  suit  against  a  party  and  his  sureties,  a  debt  or  demand 
due  from  the  plaintiff  to  the  principal  defendant,  may  be  set- 
off.  (;-) 

Where  the  maker  of  a  note  seeks  to  set  up  as  a  defense, 
in  a  suit  by  an  indorsee  after  maturity,  a  cross  demand 
which  the  maker  had  against  the  payee  and  indorser  before 
the  assignment,  such  demand,  or  so  much  thereof  as  may 
be  necessary,  should  be  pleaded  specially,  under  the  stat- 
ute, and  not  as  a  set-ofT.  (5) 

The  words  "claims  or  demands,"  as  used  in  the  17th 
section  of  the  Illinois .  practice-act  of  1827,  embrace  all 
claims  or  demands  arising  out  of  contracts,  whether  ex- 
press or  implied.  (/)  Section  29  of  the  act  now  in  force  is 
substantially  the  same.  (?^) 

Mutual  demands  arising  out  of  the  same  subject-matter, 
and  capable  of  being  balanced  against  each  other,  may  be 
adjusted  in  one  action,  by  recoti^mcnt.  It  is  not  necessary 
that  the  opposing  claims  should  be  of  the  same  character. 
A  claim  originating  in  contract  may  be  set  up  against  one 
founded  in  tort,  if  the  counter  claims  arise  out  of  the  same 
subject-matter,  and  are  capable  of  adjustment  in  one  action. 
The  defendant  in  such  case  can  not,  however,  as  in  the 
case  of  a  set-off,  recover  any  excess  in  his  favor.  His 
claim  is  used  in  mitigation  of  damages  only,  iv) 

It  has  been  held  in  Indiana  that  where,  in  a  suit  upon  a 
promissory  note  in  which  one  of  the  defendants  is  principal 
and  the  other  surety,  the  defendants  plead  as  a  set-off  a 
debt  of  the  plaintiff  to  the  principal,  the  plaintiff  may,  in 
order  to  meet  the  plea,  set  up  in  reply  any  debt  from  the 
principal  to  the  plaintitT,  or  to  any  former  holder  of  the 
note,  which  is  a  legitimate  svibjcct  of  set-off;  and  the  ex- 

(r)  85  111.  435  ;  8  N,  H.  539;  33  N.  H.  310;  I  Chapman,   180.     See  Water 
man  on  Set-offs,  §  237  ;  18  Br.idw.  4S5  ;  I4  Bradw.  490. 
{s)  35  111.  142. 

[t)  3  Scam.  299 ;  I  Scam.  462. 

{ti)  Rev.  Stat.  (1S77)  73S ;  2  Starr  &  Curtis'  An.  Stat.  1791. 
(v)   14  111.  424;  115  111.  544;  20  Bradw.  113. 


2o8  ASSUMPSIT. 


Special  pleas — Set-off — Observations. 


cess  only  of  the  defendant's  claim  shall  go  in  bar  of  the 
action,  (zf) 

An  amount  not  due,  claimed  as  a  set-off  to  a  former 
suit,  and  not  allowed,  may,  after  it  becomes  due,  be  recov- 
ered, (.y) 

A  court  has  discretion  to  allow  items  of  set-off  that  have 
been  withdrawn  to  be  again  filed,  (y) 

A  judgment  recovered  after  action  brought,  and  after 
plea  pleaded,  can  not  be  set  off  against  the  plaintiff's  de- 
mand, {z) 

A  defendant  is  not  bound  to  set  off  his  debt  against  the 
plaintiff's  demand,  except  in  suits  before  a  justice  of  the 
peace. (a) 

The  personal  debt  of  an  executor  or  administrator  can 
not  be  set  off  against  a  debt  due  to  the  estate,  (d) 

In  an  action  to  recover  a  debt  accruing  to  an  adminis- 
trator after  the  death  of  the  intestate,  the  defendant  can  not 
set  off  a  debt  which  was  owing  to  him  from  the  intestate  in 
his  life-time,  (c) 

An  administrator  is  not  bound  to  set  off  any  debt  or  de- 
mand against  a  claim  presented  by  a  creditor,  against  the 
estate,. and  his  omission  to  do  so  will  not  bar  an  action 
against  such  creditor,  (d) 

A  note  payable  in  mason-work  is  not  assignable  so  as  to 
enable  the  assignee  to  plead  it  as  a  set-off  to  an  action 
against  him,  or  to  enable  him  to  institute  a  suit  thereon  in 
his  own  name.  (  e) 

Where  the  plaintiff  brought  an  action  of  assumpsit  against 


(w)  12  Ind.  413 

(*;  19  111.  55;  i4Pick.  315,  318. 

(j)  22  111.  9. 

{z)  I  Scam.  135. 

(a)  I  Scam.  214.     See  11  111.  563. 

(3)  52  111-  342- 

((■)   14  111.  338  ;  107  111.  264. 

(d)  I  Scam.  214;  II  Iowa,  8l. 

(e)  I  Scam.  291 


ASSUMPSIT.  209 


Special  pleas — Set-oflf — Observations. 


the  defendants,  to  recover  for  the  transportation  of  goods 
from  Buffalo  to  Chicago,  it  was  held  that  the  defendants 
might  give  in  evidence  under  the  general  issue  and  a  no- 
tice, either  by  way  of  set-off  or  in  reduction  of  damages, 
that  a  part  of  the  goods,  had  been  lost  or  destroyed  on  tlie 
voyage  by  the  carelessness  or  negligence  of  the  plaintiff.  (_/) 

The  defendant  can  not  be  allowed  a  set-off,  nor  can  ac- 
counts between  the  parties  be  adjusted,  in  an  action  of 
trover.  ( g-) 

In  pleading  a  set-off,  the  defendant  assumes  the  attitude 
of  a  plaintiff,  and  is  bound  to  prove  the  same  facts  in  rela- 
tion to  his  demand  as  if  he  had  instituted  an  action  upon 
it.  (A) 

Where  bank-notes  were  introduced  by  way  of  set-off,  in 
a  suit  where  the  bank  was  plaintiff,  it  was  held  that  the  de- 
fendant must  prove  that  he  held  them  when  the  suit  was 
commenced,  (z) 

A  banker  can  not  set  off  a  demand  he  holds  against  the 
presenter  of  a  check  on  such  banker,  (j) 

A  claim  against  a  plaintiff  in  a  representative  capacity, 
can  not  be  set  off  in  a  suit  brought  in  his  individual  capac- 

It  may  be  shown  that  the  plaintiff  in  a  suit  is  a  trustee 
of  the  payee  of  the  note  sued  on,  so  as  to  let  in  a  set-off 
against  the  payee.  (/) 

In  a  suit  on  a  note  assigned  after  maturity,  a  set-off 
against  the  assignor  is  allowed,  (m)  But  the  demand  of 
the  maker  against  the  payee  should  in  such  case  be  pleaded 
specially,  and  not  as  a  set-off.  («) 

(/)  I  Scam.  462. 

iff)  12  111.  99. 

(/i)  I  Gilm,  649;   117  111.  45S. 

(i)  I  Gilm.  649. 

(7)43111.497;  105  111.  470. 

(i)  9  Pick.  265. 

(/)  3  Ind.  412. 

(w)    II  Wend.  504;  19  Wend.  397. 

(«)  35    111.  142. 

14 


2IO  ASSUMPSIT 


Special  pleas — Release. 


In  an  action  by  a  surviving  dormant  partner,  the  defend- 
ant may  set  off  a  debt  due  from  the  partnership,  (o) 

Courts  of  equity  will  sometimes  interfere  to  set  off  one 
judgment  against  another,  if  a  party  is  unable  to  enforce 
his  judgment  at  law.  {p) 

An  order  drawn  by  the  mayor  of  a  city  on  its  treasurer, 
commonly  called  a  city  order,  is  a  proper  subject  of  set-off 
in  a  suit  brought  by  the  city  against  the  holder  to  recover 
a  penalty  for  a  breach  of  an  ordinance  of  the  city,  (g) 

A  set-off  is  not  allowable  in  a  proceeding  by  scire  facias 
for  foreclosure,  (r)  or  in  debt  on  a  judgment.  (/)  But  as 
to  suits  on  judgments,  etc.,  in  Illinois,  see  section  i8,  above 
referred  to,  of  the  practice-act  of  1872. 

The  defendant  may  plead  a  set-off  in  a  proceeding  by  dis- 
tress for  rent,   [v) 

The  additional  Illinois  cases  noted  below  may  be  con- 
sulted on  the  subject  of  set-off.  {u) 

No.  92.     Pica  of  release. 

(As  in  No.  70,  ante,  to  the  asterisk^  and  then  ■proceed :) 
that  after  the  making  of  the  several  promises  in  the  said 
declaration  mentioned,  and  before  the  commencement  of 
this  suit,  to  wit,  on,  etc.,  in,  etc.,  the  plaintiff,  by  his  deed 
bearing  date  of  that  day,  and  now  to  the  court  here  shown, 
released  to  the  defendant  the  said  several  promises,  and  all 
demands  and  causes  of  action  whatsoever  which  the  plaint- 
iff^ then  had  against  the  defendant,  or  might  thereafter  liave 
or  allege  against  him,  by  reason  of  any  matter  or  thing 
previous  to  that  time ;  as  by  the  said  deed,  reference  being 
thereto  had,  will  fully  appear  :  And  this,  etc.  {conclude  zvilh 
a  verification.,  as  in  No.  70,  ante.) 

(o)  10  Ohio,  455. 

(/)  3  Gilm.  626;  12  111.  89.  See  39  111.  172;  33  111.  465;  35  111.  512;  38 
111.  27. 

((7)  2  Gilm.  241. 
(r)  Hill-  213. 
(5)  14  111.  75- 

(0  17-111-  572- 

{v)  Rev.  Stat.  (1874)  660;   Rev.  Stat.  (1S77)  629;  86  111.  560. 

(m)  3  Scam.  367;  16  111.  269;  19  111.  631;  20  111.  65,  497;  21  111.  180:  22 
111.  257;  27  111.  29.S;  3^111-  505.  538;  34  111-  494;  37  111.  317;  39  111.  3SS;  44 
111-  339.  342;  86  111.  26S;  81  111.  381. 


ASSUMPSIT.  21 1 


Special  pleas — Release — Observations — Replication. 


In  debt  on  simple  contract,  say  "  after  the  making  of  the 
several  contracts ;"  in  debt  on  a  specialty,  or  in  covenant, 
say,  "  after  the  making  and  delivery  of  the  said  writing :" 
and  in  trespass,  say  "after  the  committing  of  the  several 
trespasses" — in  case,  etc,  "grievances:"  and  so  on, 
throughout  the  plea,  using  words  appropriate  to  the  partic- 
ular form  of  action. 

(In  any  pleading  where  it  is  meant  to  dispute  the  valir* 
ity  of  the  contract  or  promise  set  up  on  the  other  side,  it  is 
proper  to  refer  to  such  contract  or  promise  by  the  term 
^'■supposed,'"  e.  g.,  "the  said  supposed  promise,"  etc.  ;  or  a 
deed  or  other  instrument  maybe  referred  to  as  "the  said 
writing  ;"  and  in  like  manner  alleged  trespasses  or  griev- 
ances may  be  referred  to  as  "the  said  supposed  trespasses,'' 
etc.) 

A  release  may  be  given  in  evidence  under  non  assjcmpstt, 
or  pleaded  with  it ;  [a)  but  in  debt  on  a  specialty  it  must  be 
pleaded,  {b)  Where  a  release  has  actually  been  given,  it 
is  sometimes  advisable  to  plead  it,  in  order  to  narrow  the 
evidence  on  the  trial.  The  statement  of  the  subject-matter 
of  the  release,  etc.,  will  of  course  vary,  according  to  the 
terms  of  the  instrument.  This  defense,  like  various  others, 
ma}'  be  proved  under  the  general  issue,  although  there  is 
also  a  special  plea  in  which  the  ground  of  defense  may  not 
have  been  correctly  set  forth,  {c) 

For  a  form  of  general  release,  at  full  length,  see  the  prec- 
edent of  a  plea  of  release  in  3  Chitty's  Pleading. 

JVo.  93.     RefUcation  to  No.  92 — non  est  factum, 

(^As  in  No.  71,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  supposed  writing  of  release  in  that  plea  mentioned 
is  not  his  deed ;  and  this  he  prays  may  be  inquired  of  by 
the  country,  etc. 

(a)  I  Chit.  PI.  418;  3  lb.  931,  o. 
(*)  I  Chit.  PI.  426. 
(c)  I  Chit.  PI.  419. 


212  ASSUMPSIT. 


Special  pleas — Release — Observations. 


The  replication  may  be  "that  the  said  supposed  writing 
of  release  was  obtained  from  the  plaintiff'  by  the  fraud  and 
covin  of  the  defendant,"  concluding  with  a  verification  ;  or 
that  the  writing  was  obtained  by  duress,  for  which  see  the 
precedent  of  a  plea  of  duress,  in  the  action  of  debt,  -post. 

The  general  rule  is,  that  a  release  of  one  of  several 
joint,  or  joint  and  several,  promisors  or  obligors  discharges 
all,  even  though  such  release  specially  provides  that  it  shall 
not  operate  to  discharge  the  others,  (fi?)  But  in  the  case 
reported  in  vol.  44,  Illinois  Reports,  p.  405,  the  court,  after 
observing  that  there  are  facts  in  that  case  which  v  Mely  dis- 
tinguish it  from  two  former  cases  in  which  the  court  had 
adhered  to  the  above  rule,  {e)  says,  that  "the  weight  of  the 
modern  authorities  is  against  these  cases,  and  in  favor  of 
the  more  reasonable  rule  that  where  the  release  of  one  of 
several  obligors  shows  upon  its  face,  and  in  connection  with 
the  circumstances,  that  it  was  the  intention  of  the  parties 
not  to  release  the  co-obligors,  such  intention,  as  in  the  case 
of  other  written  contracts,  shall  be  carried  out,  and  to  that 
end  the  instrument  shall  be  construed  as  a  covenant  not  to 
sue ;"  and  the  court  quotes  from  Parsons  on  Contracts,  vol. 
I,  p.  24,  that  "  though  the  word  release  be  used,  even  un- 
der seal,  yet  if  the  parties  (the  instrument  being  considered 
as  a  whole,  and  in  connection  with  all  the  circumstances 
of  the  case  and  the  relations  of  the  parties)  can  not  reason- 
ably be  supposed  to  have  intended  a  release,  it  will  be  con- 
strued as  only  an  agreement  not  to  charge  the  person  or 
party  to  whom  the  release  is  given,  and  will  not  be  per- 
mitted to  have  the  effect  of  a  technical  release  ;  for  a  gen- 
eral covenant  not  to  sue  is  not  of  itself  a  release  of  the 
covenantee,  but  is  so  construed  by  the  law  to  avoid  circuity 
of  action ;  and  a  covenant  not  to  sue  one  of  many  who  are 
jointly  indebted  does  not  discharge  one  who  is  a  joint 
debtor  to  the  covenantor,  nor  in  any  way  affect  his  obliga- 

(rf)  4  Gilm.  536;  18  111.  331 ;  5  Bac.  Abr.  702  G;  2  Salk.  574;  6  Vesey, 
Jr.  146. 

Ce)  4  Gilm.  536;  18  111.  331. 


ASSUMPSIT.  213 


Special  pleas — Release — Observations. 


tion.  (y)  This  case  was  in  chancery,  and  the  evidence 
showed  a  scheme  on  the  part  of  the  obligors  to  procure  a 
release  to  one  of  them,  for  the  purpose  of  escaping  the  full 
payment  of  the  debt. 

In  the  case  above  mentioned,  the  court  also  says  that  the 
reason  why  a  release  of  one  of  several  obligors  discharges 
all  is  that  by  such  release  the  right  to  enforce  contribution 
is  cut  off,  and  that  if  that  right  is  reserved,  the  release 
should  be  construed  as  a  simple  covenant  not  to  sue,  leav- 
ing the  liability  of  the  co-obligors  unimpaired.  "The  rea- 
son of  the  rule  failing,  the  rule  itself  should  cease,  the  more 
especially  when  its  application  would  work  injustice." 

One  of  several  joint  pa^-ees  or  obligees  may  receive  pay- 
ment or  satisfaction,  and  discharge  the  entire  obligation,  and 
the  others  will  be  bound  by  his  acts  in  that  regard.  This  is 
the  general  rule.  But  to  give  that  effect  to  a  release  exe- 
cuted by  one  of  several  joint  obligees,  it  must  be  the  inten- 
tion of  the  parties  to  the  release  that  it  shall  so  operate,  and 
the  transaction  must  be  free  from  all  fraud  upon  the  rights 
of  those  of  the  obligees  who  do  not  join  in  the  execution  of 
the  release,  {g) 

A  release  is  to  be  construed  according  to  the  particular 
purpose  for  which  it  was  made,  and  a  particular  recital  in 
such  an  instrument  will  restrain  its  general  words,  {h) 

A  release  under  seal  may  be  pleaded  in  bar  of  a  demand 
for  a  larger  sum  than  was  paid  to  obtain  the  release.  (/) 

When  made  for  a  sufficient  consideration,  a  release  not 
under  seal  is  binding,  ij) 

An  agreement  to  extend  the  time  of  payment  ot  a  debt, 
without  an  agreement  not  to  sue,  does  not  bar  a  suit  for  the 

(/)  66  Eng.  C.  L.  536;  93  id.  215;  2  B.  &  B.  46;  6  Johns.  Ch.  242; 
5  Gill  &  Johns.  351;  5  Duer,  116;  23  Pick.  444;  R.  M.  Charlton,  (Geo.) 
267. 

iff)  50  III-  332- 

(//I  8  Clark  (Iowa),  304. 

(/■)  20  111.  203;  Com.  Dig.  Release,  E,  2,  > 

0')4Gilm.  536;  37  111- 484- 


214  ASSUMPSIT. 


Special  pleas — Release — Observations. 


debt,  commenced  before  the  expiration  of  the  extended 
time,  (k)  but  such  agreement  is  pleadable  in  abatement  of 
the  suit.  (/)  A  covenant  not  to  sue  is  in  equity  a  re- 
lease, (m) 

In  a  case  where  the  defendant,  a  railroad  company,  re- 
lied upon  a  release  under  seal,  it  was  held  that  if  the  plaint- 
iff executed  the  release  under  the  belief,  induced  by  the 
representations,  words  or  acts  of  the  defendant's  agents, 
that  it  merely  covered  a  month's  time,  or  wages,  such  re- 
lease would  not  operate  as  a  bar ;  and  that  whether  the 
plaintiff  so  executed  it  or  not  was  a  question  for  the  jury.  («) 

Where  one  of  several  persons  jointly  liable  is  sued  alone, 
and  a  recovery  is  had  against  him,  the  others  are  re- 
leased; (o)  and  such  former  recovery  may  be  given  in 
evidence  under  the  general  issue,  (p)  But  where  the  con- 
tract is  several  as  well  as  joint,  separate  actions  may  be 
prosecuted  upon  it  against  the  several  parties  liable,  until 
satisfaction  is  obtained,  {g) 

The  additional  Illinois  cases  noted  below  may  be  con- 
sulted on  the  subject  of  release  generally,  (r)  and  on  the 
particular  subject  of  the  release  of  sureties.  (5) 

(k)  9  Iowa,  140. 

(/)  53  111.  307.     See  I  Chit.  PI.  393. 

(;«)  29  Conn.  25;  20  Tex.  310. 

(«)  52  111.  183. 

(o)  2  Gilm.  355;  15  111.  415;  19  111.  347;  28  111.  163;  15  Mass.  148;  il 
Gill  &  Johns.  11 ;  5  Blackf.  558. 

(/)  2  Gilm.  355;  5  Monroe,  236;  6  lb.  284;  2  Hill,  580;  6  id.  124;  7 
Cranch,  565. 

(^)  19  111.  347;   1  Chit.  PI.  ^^;  i  Greenl.  Ev.,  sec.  439,  a. 

(r)  3  Gilm.  243 ;  "14  111.  447 ;  17  111.  40 ;  20  111.  165 ;  31  111.  422,  437 ;  42  111. 
261;  43  111.  134;  44  111.  339;  46  III.  160;  47  111.  350;  48  111.  164;  54  111. 
193. 

(5)  3  Scam.  177;  I  Gilm.  409;  2  Gilm.  570,  638,  731;  11  111.  341,  352;  13 
111.  347,  376;  16  111.  166;  17  111.  278,  404,  565  ;*I9  111.  103;  20  111.  loi ;  22  111. 
525)  533;  23  111-  64;  24  111.  97,  206;  26  111.  282,  469;  27  111.  29,  173,  215,  323; 
28  111.  481 ;  31  111.  250,  25S,  400;  32  111.  399;  34  111.  424,  488,  504;  iS  ^11-  40; 
36  111.  306;  39  111.  79,  251 ;  43  111.  134;  44  111.  499;  46  111.  42S;  48  111.  329; 
49  111-  370,  409;  52  111-  210;  53  111.  126;  54  111.  159. 


ASSUMPSIT.  215 


Special  pleas — Payment — Observations. 


No.  94.     Pica  of  fayment. 

{^First  flca^  non  assumpsit,  as  ante,  JSfo.  66  ;  second  flea 
as  in  Ho.  70,  ante,  to  ike  asterisk.,  and  then  proceed :^  that 
after  the  making  of  the  several  promises  in  the  said  decla- 
ration mentioned,  and  before  the  commencement  of  this 
suit,  to  wit,  on,  etc.,  in,  etc.,  (*)  he  paid  to  the  plaintiff', 
and  the  plaintiff  accepted  from  him,  the  defendant,  divers 
moneys,  amounting  to  a  large  sum,  to  wit,  the  amount  of 
all  the  sums  of  money  in  the  said  declaration  mentioned,  in 
full  satisfaction  and  discharge  of  the  said  several  promises 
and  of  the  sums  of  money  last  aforesaid  :  And  this,  etc. 
{conclude  -with  a  verijication,  as  in  No.  70,  ante.) 

In  order  to  adapt  this  plea  to  an  action  of  debt  on  simple 
contract,  it  will  be  sufficient  to  substitute  the  word  contracts 
for  the  wovd  promises,  throughout  the  plea  ;  or  other  forms 
of  words,  appropriate  to  that  action,  may  be  used. 

If  it  is  desired  to  plead  a  partial  payment  only,  the  plea 
is  to  be  limited  accordingly  in  the  commencement ;  and  if  a 
payment  after  action  brought  is  to  be  pleaded,  the  defendant 
says  in  the  commencement  that  the  plaintiff  "ought  not 
further  to  maintain  his  aforesaid  action,"  etc.  (^) 

The  above  form,  substantially,  of  the  plea  of  payment  is 
believed  to  be  the  one  generally  used,  but  it  seems  rather 
to  be  a  plea  of  accord  and  satisfaction  than  of  payment. 
No  precedent  of  a  plea  of  payment  in  assumpsit,  or  in  debt 
on  simple  contract,  is  found  in  Chitty  on  Pleading,  proba- 
bly for  the  reason  that  it  was  not  usual  in  England  to  plead 
this  defense  specially  in  those  actions.  It  is  submitted  that 
a  plea  would  be  sufficient  in  which  the  defendant  should 
allege  that  "  he  paid  to  the  plaintiff'  all  the  moneys  in  the 
said  declaration  alleged  to  be  due  to  him  from  the  defend- 
ant"— substituting  these  words  for  those  between  the  aster- 
isk and  the  conclusion  in  the  above  precedent. 

(/)  See  forms,  2  Swan's  Pr.  702-706. 


2i6  ASSUMPSIT. 


Special  pleas — Payment — Replication — Observations. 

No.  95.     Replication  to  No.  94,  denying  the  -payment. 

(As  in  No.  71,  ante,  to  the  asterisk^  and  then  proceed:^ 
that  the  defendant  did  not  pay  to  the  plaintiff  the  moneys 
in  the  said  second  plea  in  that  behalf  mentioned,  in  full 
satisfaction  and  discharge  of  the  several  promises  and 
sums  of  money  in  the  said  declaration  mentioned,  in  man- 
ner and  form  as  the  defendant  has  above  in  that  plea  al- 
leged :  And  this  the  plaintiff  prays  may  be  inquired  of  by 
the  country,  etc. 

(If  the  plea  should  be  that  the  defendant  "paid  to  the 
plaintiff  all  the  moneys  in  the  said  declaration  alleged  to  be 
due  to  him  from  the  defendant,"  then  the  replication  would 
be  simply  "that  the  defendant  did  not  pay  to  the  plaintiff 
the  moneys  in  the  said  second  plea  in  that  behalf  mentioned, 
or  any  part  thereof,  in  manner  and  form,"  etc.) 

Payment  may  be  given  in  evidence  under  the  general 
issue  in  assumpsit,  and  in  debt  on  simple  contract,  {u)  but 
in  debt  on  a  specialty  it  must  be  pleaded,  {y) 

Under  the  plea  of  payment,  the  defendant  may,  by  prov- 
ing payment  in  full,  defeat  a  recovery  altogether ;  and  by 
showing  pardal  payment  he  may  defeat  it  -pro  tanto.  (w) 

A  payment  to  a  nominal  plaintiff  is  not  a  satisfaction  of 
the  debt,  {pc) 

Where  a  person  makes  a  payment  of  money,  he  is  bound 
to  know  whether  the  person  to  whom  the  payment  is  made 
is  authorized  to  receive  it.  If  he  who  has  paid  money 
could  have  successfully  resisted  a  suit  brought  by  the  per- 
son to  whom  he  has  paid  it,  then  such  payment  is  not  good  ; 
and  tliis  is  the  true  test  of  the  validity  of  a  payment,  (jy) 

A  receipt  in  full  of  all  demands  is  evidence  prima  facie 

{tc)  1  Chit.  PI.  417,  418,  421,  422;  Gould's  PI.  304-306;  Greenl.  Ev., 
sec.  516;  16  111.  21 ;  6  Blackf.  319;  12  Ohio,  12a 

{v)   I  Chit.  PI.  426;  Gould's  PI.  303. 

(«')   3  Scam.  427;  9  Bradw.  528. 

(x)  12  111.   137- 

(  V)  12  111.  424;  43  111.  220;  45  III-  460;  92  Til.  192;  45  III-  213;  "o  III. 
542;   112  111.  572. 


ASSUMPSIT.  217 


Special  pleas — Payment — Observations. 


of  the  payment  of  all  notes  and  claims  existing  at  the  time 
the  receipt  is  given,  (z) 

Where  a  debtor  makes  a  payment  without  specifying  to 
what  debt  it  shall  be  applied,  the  creditor  has  the  right  to 
select  the  debt  on  which  he  will  give  the  credit,  {a) 

Where  notes  of  third  persons  are  placed  in  the  hands  of 
a  creditor  as  collateral  security,  but  are  not  paid,  the  per- 
son depositing  them  can  claim  no  credit  for  the  amount  due 
by  such  notes,  (d) 

A  payment  to  one  of  several  partners  is  a  payment  to  all, 
unless  such  payment  to  the  one  is  strictly  forbidden  by  the 
others,  (c) 

The  giving  of  a  bond  in  satisfaction  of  a  judgment  is  in 
law  a  payment  of  such  judgment,  (d) 

A  payment  in  good  faith  to  an  agent  of  the  creditor,  au- 
thorized to  receive  it,  is  a  payment  to  the  creditor,  even 
though  the  agent  misapplies  the  amount  received,  (e) 

A  payment  may  be  in  goods  as  well  as  in  money.  {/") 

The  giving  of  a  new  note  is  a  payment  of  a  former 
one.  ig) 

When  a  debtor  gives  a  note  to  his  creditor  for  a  debt  due 
on  simple  contract,  the  presumption  is  that  the  note  is  re- 
ceived in  payment,  though  this  presumption  may  be  con- 
trolled by  evidence  that  this  was  not  the  intent  of  the 
parties,  {/i) 


{z)  I  Scam.  270;  4  Gilm.  354;  12  111.  281 ;  14  111.  37,  198. 

(a)  2  Scam.  347;  5  Gilm.  449;  I  Scam.  196;  7  Bradvv.  47;  103  111.  605; 
29  111.  308;  32  111.  382.  See  2  Greenl.  Ev..  sees.  530,  533;  12  111.  159;  4 
Scam.  136;  30  111.  276;  3i'Ill.  350;  39  111.  313;  53  111.  419;  60  111.  380. 

{i>)  27  111.  105.     See  84  111,  183. 

(c)  Brcese,  143.     See  24  111.  154;  114  111.  388. 

(rf)  27  111.  434;   15  111.  159.     See  115  111.  427. 

{e)  3  Ind.  407  ;  3  Ohio,  275  ;  8b  111.  446. 

(/)  2  M.  &  W.  467 ;  14  Ohio,  497.     See  17  111.  40;  22  111.  244. 

iff)  4  Pick.  444;'2  Metcalf,  147;  19  III.  207.  See  i  Scam.  154;  24  111.  154; 
16  III.  161  ;  33  111.  344;  I  Bradwell,  280;  71  111.  463  ;  68  111,  604. 

(A)  2  Metcalf,  76;  10  Pick.  522;  11  Pick.  125;  8  Pick.  122,  522;  2  Met- 
calf, 168,  173;  12  Pick.  268;  6  Mass.  143;  81  111.  221 ;  8  Bradw.  534;  98  111. 
27  ;    112  111.  105. 


2i8  ASSUMPSIT. 


special  pleas — Accord  and  satisfaction. 


Under  the  plea  of  pa3'ment,  evidence  of  set-off,  or  of 
matter  in  recoupment,  is  inadmissible.  (?') 

See  fm-ther,  on  the  subject  of  payment,  the  additional 
Illinois  cases  noted  below.  {J) 

JVo.  96.     Pica  of  accord  and  satisfaction — Delivery  and 
acceptance  of  goods. 

{As  in  JVo.  70,  ante,  to  the  asterisk,  and  then  proceed :) 
that  after  the  making  of  the  several  promises  in  the  said 
declaration  mentioned,  and  before  the  commencement  of 
this  suit,  to  wit,  on,  etc.,  in,  etc.,  he  delivered  to  the  plaint- 
iff, and  the  plaintiff  accepted  of  him,  the  defendant,  two 

thousand  bushels  of  wheat,  of  the  value  of dollars,  in 

full  satisfaction  and  discharge  of  the  said  several  promises 
and  of  all  the  sums  of  money  in  the  said  declaration  men- 
tioned:  And  this,  etc.  {conclude  with  a  verification,  as  in 
No.  70,  ante.) 

Some  of  the  precedents  of  this  plea  omit  the  statement 
as  to  the  value  of  the  property  delivered,  {k) 

It  is  not  required  that  the  chattels  delivered  should  be  of 
a  value  equal  to  the  debt,  for,  as  it  is  said,  "  tiie  party  re- 
ceiving them  is  always  taken  to  be  the  best  judge  of  that, 
in  matters  of  uncertain  value.  (/) 

See  the  observations  under  forms  No.  92  and  No.  94, 
ante,  as  to  adapting  the  plea  to  the  action  of  debt  on  simple 
contract,  or  other  action. 

The  defense  of  accord  and  satisfaction  may  be  given  in 
evidence  under  the   general  issue   in   assumpsit,   debt  on 

(/)  19  Ark.  230.     See  32  111.  505,  53S. 

(y)  I  Gilm.  475;  4Gilm.  521;  13  111.  289;  17  111.  259;  18  111.  483;  20  111. 
558;  22  111.  528;  32  111.  344;  34  111.  9;  40'in.  171,  514;  42  111.  336;  43  ill- 
372;  48  111.  420;  52  111-  491 ;  53  111-  57>  84;  54  111-  306. 

(/t)  Staph.  PI.  218;  2  Swan's  Pr.  604.     See  3  Chit.  PI.  92  f. 

( t)  Dyer  72,  a;  5  B.  &  Ad.  932 ;  3  N.  &  M.  167,  S.  C. 


ASSUMPSIT.  219 


Special  pleas — Accord  and  satisfaction — Replication — Observations. 

simple  contract,  {in)   and  case,   {n)  but  in  debt  on  a  spe- 
cialty, [o]  and  in  trespass,  it  must  be  pleaded.  (  ;p) 

No.   97.      Replication   to  No.   96,   denying  delivery   oj 
^ro^ei'ty,  etc. 

{As  in  No.  71,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  defendant  did  not  deliver  to  the  plaintili  the  said 
two  thousand  bushels  0/ wheat  in  the  said  second  plea  men- 
tioned, in  full  satisfaction  and  discharge  of  the  several 
promises  and  sums  of  money  in  the  said  declaration  men- 
tioned, in  manner  and  form  as  the  defendant  has  above  in 
that  plea  alleged  :  And  this  the  plaintili'  prays  may  be  in- 
quired of  by  the  country,  etc. 

"Accord  is  a  satisfaction  agreed  upon  between  the  party 
injuring  and  the  party  injured,  which,  when  performed,  is 
a  bar  of  all  actions  upon  this  account."  {q) 

In  order  to  make  a  good  accord  it  is  essential :  i.  That  it 
be  legal.  An  agreement  to  drop  a  criminal  prosecution  as 
a  satisfaction  for  an  assault  and  imprisonment,  is  void,  (r) 
2.  It  must  be  advantageous  to  the  party  accepting ;  hence 
restoring  to  the  plaintili'  his  property,  of  which  the  defendant 
has  wrongfully  dispossessed  him,  will  not  be  any  consid- 
eration to  support  a  promise  by  the  plaintiff  not  to  sue  him 
for  the  injury.  (5)  3.  It  must  be  certain;  hence  an  agree- 
ment that  the  defendant  shall  relinquish  the  possession  of  a 
house  in  satisfaction,  etc.,  is  not  valid,  unless  it  is  also 
agreed  at  what  time  it  shall  be  relinquished,  {t)     4.  The 

(w)  I  Chit.  PI.  417,  421,  422  ;  Gould's  PI.  304-307. 

(w)  I  Chit.  PI.  432 ;  Gould's  PI.  308. 

(o)  I  Chit.  PI.  426. 

(/)  I  Chit.  PI.  441 ;  3  Gilm.  99. 

(q)  3  Black.  Com.  15;  Bacon's  Abr.,  Accord;  2  Greenl.  Ev.  28;  48  111.  32. 

(/-)  5  East,  294.     See  2  Wils.  341 ;  Cro.  Eliz.  541 ;  i  Bouv.  L.  D.  47. 

(5)  I  Bouv.  L.  D.  47;  Dyer,  75;  5  East,  230;  Str.  R.  426;  2  Term  R.  24; 
II  East,  390;  3  Hawks,  580;  2  Litt.  R.  49;  i  Stew.  R.  476;  5  Day  R.  363; 
I  Root,  426;  3  Wend.  66;  i  Wend.  164;  14  Wend.  116;  3  J.  J.  Marsh.  R. 
497- 

\,t)  Yelv.  125;  4  Mod.  88;  2  Johns.  342;  3  Lev.  189;  i  Bouv.  L.  D.  1S9. 


220  ASSUMPSIT. 


Special  pleas — Accord  and  satisfaction — Observations. 

defendant  must  be  privy  to  the  contract.  If  therefore  the 
consideration  for  the  promise  not  to  sue  proceeds  from  an- 
other, the  defendant  is  a  stranger  to  the  agreement,  and  the 
circumstance  that  the  promise  has  been  made  to  him  will 
be  of  no  avail.  {71)     5.  The  accord  must  be  executed,  {e) 

Accord  with  satisfaction  when  completed  has  two' effects  ; 
it  is  a  payment  of  the  debt,  and  it  is  a  species  of  sale  of  the 
thing  given  by  the  debtor  to  the  creditor  in  satisfaction  ;  but 
it  differs  from  a  sale  in  this,  that  it  is  not  valid  until  the  de- 
livery of  the  article,  and  there  is  no  warranty  of  the  thing 
thus  sold,  except  perhaps  as  to  the  title,  (v) 

A  plea  of  accord  and  satisfaction  must  show  an  accept- 
ance of  the  property  alleged  to  have  been  delivered  in  sat- 
isfaction of  the  demand,  (w) 

An  item  of  account  canvassed  and  disallowed  at  a  settle- 
ment of  accounts,  upon  which  settlement  a  note  is  given, 
may  afterwards  be  made  the  foundation  of  an  action  or  set- 
off, in  the  absence  of  fraudulent  representations  or  practices 
at  the  settlement,  (x) 

It  seems  that  an  attachment  of  sufBcient  property  is,  like 
an  execution  levied,  a  satisfaction  ot  the  debt,  and  may  be 
so  pleaded,  (y) 

Where  a  sum  of  money  is  paid  in  settlement  of  a  disputed 
claim,  in  which  a  greater  amount  is  claimed,  it  is  a  good 
accord  and  satisfaction,  and  a  bar  to  a  subsequent  suit  for  the 
balance  claimed,   (s) 

Where  a  party  relies  on  an    accord    and    satisfaction,    in 

(u)   Str.  R.  592 ;  6  Johns.  R.  37;  3  Modern,  302. 

((?)  5  Johns.  R.  386;  15  Texas,  198;  44  Maine,  121;  3  Johns.  Cas.  243;  16 
Johns.  86;  2  Wash.  C.  C.  R.  180;  6  Wend.  390;  5  N.  H.  R.  136.  See  4 
Scam.  51. 

(v)   I  Bouv.  L.  D.  47,  and  cases  there  cited ;  48  111.  32. 

(to)  3  East,  256;  38  Penn.  State  R.  147;  4  Scam.  51. 

(x)  IS  Ind,  371. 

(y)  24  111.  326 ;   40  Penn.  State  R.  490. 

(2)  89  111.  215;  45  111.  213;  78  111.  44;  4  Bradw.  661;  44  111.  425;  i 
Greenl.  on  Ev.,  305  ;  116  111.  418;  51  111.  373;  8  Iowa,  463;  6  Wis.  175;  22 
How,  (U.  S.)  270;   III  111.  328. 


ASSUMrSIT.  221 


Special  pleas — Accord  and  satisfaction — Observations. 

bar  of  an  action,  he  must  show  that  the  accord  has  been 
fully  executed,  {b) 

A  plea  of  accord  without  satisfaction  is  not  a  good  plea 
to  an  action  of  trespass,  [c) 

1^0.  98.     Pica  of  accord  and  satisfaction — Account  stated.^ 
and  delivery  of  defendant^ s  -pro^nissory  note  in  satisfac- 
tion . 
{First  flea,  non  assumpsit,  as  ante,  A^o.  66.)     And  for 

a  further  plea  in  this  behalf,  as  to  the  sum  of  dollars, 

{the  sum  for  which  the  note  was  given,)  parcel  of  the  sev- 
eral sums  of  money  in  the  said  declaration  mentioned,  the 
.  defendant  says  that  the  plaintiff  ought  not  to  have  his  afore- 
said action  against  him,  the  defendant,  because  he  saj^s, 
that  after  the  making  of  the  several  promises  in  the  said 
declaration  mentioned,  and  before  the  commencement  of 
this  suit,  to  wit,  on,  etc.,  in,  etc.,  an  account  was  stated 
between  the  plaintiff  and  the  defendant,  concerning  the 
said  several  sums  of  money  in  the  said  declaration  men- 
tioned, and  upon  that  accounting  the  defendant  was  then 
and  there  found  to  be  indebted  to  the  plaintiff  in  the  said 
sum  of dollars  ;  for  which  said  sum  of  money  the  de- 
fendant then  and  there  made,  and  delivered  to  the  plaintif!', 
his  promissory  note,  bearing  date  of  that  day,  whereby  he, 
the  defendant,  promised  to  pay  that  sum  of  money  to  the 

plaintiff,  or  his  order, after  the  date  of  the  said 

i^te ;  and  the  plaintiff  then  and  there  accepted  the  said 

note  for  and  on  account  of  the  said  sum  of dollars, 

parcel,  etc.  ;  and  by  reason  thereof  the  defendant  then  and 
there  became,  and  still  is,  liable  to  pay  that  sum  of  money, 
according  to  the  tenor  and  effect  of  the  said  note.  And 
this,  etc.  {conclude  with  a  verification,  as  in  Ho.^o,  ante.) 

In  general  the  payment  of  a  smaller  sum  can  not  be 
pleaded  as  a  satisfaction  of  a  larger.  The  plea  should 
therefore  be  pleaded  only  to  the  amount  of  the  sum  men- 
tioned in  the  note  or  bill,  as  in  the  above  form,  or  else  it 
should  aver  that  the  defendant  was  not  indebted  to  the 

(*)  15  Texas,  198;  44  Maine,  121.     See  4  Scam.  51. 
(c)  28  Mo.  (7  Jones,)  397. 


222  ASSUMPSIT. 


Special  pleas — Accord  and  satisfaction — Observations. 

plaintiff  more  than  that  sum.  (d)     See  a  precedent  in  the 
latter  form,  3  Chit.  PL,  5th  Am.  ed.  926.  (e) 

Where  the  defendant,  in  his  plea,  alleged  that  on  stating 
a  balance  of  accounts  he  delivered  certain  negotiable  paper 
to  one  C,  on  account  and  in  behalf  of  the  plaintiffs,  but 
did  not  aver  that  C.  was  the  agent  of  the  plaintiffs,  nor  that 
the  paper  was  accepted  in  full  satisfaction  and  discharge  of 
the  debt  due  to  the  plaintiffs,  the  plea  was  held  bad.  (_/") 

In  3  Chitty  on  Pleading,  p.  1157,  note,  it  is  said  that 
"where  a  note  or  bill  has  in  fact  been  given  in  payment, 
and  is  so  pleaded,  the  replication  must  not  traverse  the  de- 
livery or  acceptance  in  satisfaction,  but  must  state  the  dis- 
honor of  such  bill  when  the  same  became  due,  and  if  the 
defendant  were  drawer  or  indorser,  should  aver  that  he  had 
notice  thereof."     See  the  precedent  there  given. 

The  replication  sometimes  -protests  the  delivery  of  the 
goods,  etc.,  and  traverses  the  acceptance,  and  this  is  proper 
where  there  has  in  fact  been  a  delivery,  but  no  acceptance 
in  satisfaction.  (^)  The  commencement  of  a  replication 
with  a  protestation  is  as  follows  :  "And  the  plaintiff,  as  to 
the  plea  of  the  defendant  by  him  secondly  above  pleaded,  • 
says  that  he,  the  plaintifl^,  ought  not,  by  reason  of  anything 
in  that  plea  alleged,  to  be  barred  from  having  his  aforesaid 
action,  because,  protesting  that  the  defendant  did  not  de- 
liver to  him,  the  plaintifl\  the  horses  in  the  said  second 
plea  mentioned,  as  the  defendant  has  above  in  that  plea 
alleged, — for  replication,  nevertheless,  in  this  behalf,  the 
plaintifl'  says,"  etc. 

The  only  use  or  effect  of  a  protestation  in  a  pleading  is 
to  enable  the  party  making  it — in  case  he  succeeds  in  the 
point  to  be  tried — to  dispute  in  any  other  action  the  matter 
so  protested,  {k) 

{d)  3  Chit.  PI.,  II  Am.  ed.  926,  t. 
(g)  2  B.  &  Cres.  477. 
(/)  2  Johns.  342.     See  5  Term  R.  513. 
\g)  3  Chit.  PI.  1 156,  note. 

{k)  Steph.  PI.  218,  note;  Com.  Dig.  PI.  (N.) ;  2  Saund.  103,  a,  n.  (i); 
1  Chit.  PI.  533. 


ASSUMPSIT.  223 


Special  pleas — Arbitrament  and  awarJ. 


JVo.  99.     Plea  of  arbitrament  and  award, 

{As  in  JVo.  70.  ante,  to  the  asterisk,  and  then  -proceed:^) 
that  after  the  making  of  the  several  promises  in  the  said 
declaration  mentioned,  and  before  the  commencement  of 
this  suit,  to  wit,  on,  etc.,  in,  etc.,  the  plaintiff  and  the  de- 
fendant submitted  themselves,  {here  state  the  mode  of  sub- 
mission, -which  max  have  been  thiis :)  by  two  mutual  bonds 
of  arbitration,  bearing  date  of  that  day,  to  the  arbitration, 
and  engaged  in  all  things  to  abide  and  perform  the  award 
and  arbitrament,  of  G.  H.  and  L.  M.,  arbitrators  indifTer- 
ently  chosen  as  well  on  the  part  of  the  plaintiff  as  of  the 
defendant,  to  arbitrate  and  award  concerning  all  actions, 
causes  of  action,  controversies  and  demands  whatsoever 
theretofore  or  then  had  or  existing  between  the  said  parties, 
or  by  either  of  them  against  the  other,  so  as  the  said  award 
should  be  made  by  the  said  arbitrators,  under  their  hands, 
and  ready  to  be  delivered  to  the  said  parties  in  difference, 
or  such  of  them  as  should  desire  the  same,  on  or  before, 
etc.,  then  next:  {If  the  time  for  malcing  the  award  was 
enlarged,  here  aver  tlie  enlargement,  by  consent,  etc.)  And 
the  defendant  further  says,  that  the  said  arbitrators,  before 
the  expiration  of  the  said  time  limited  for  making  their 
award,  to  wit,  on,  etc.,  in,  etc.,  took  upon  themselves  the 
burden  of  the  said  arbitration,  and  having  duh^  examined 
and  considered  the  subject-matter  in  dispute  between  the 
plaintiff'  and  the  defendant,  they  the  said  arbitrators  did 
make  their  award  in  writintj  under  their  hands,  concerninor 
the  premises,  and  concerning  the  said  promises  in  the  said 
declaration  mentioned,  ready  to  be  delivered  to  the  said 
parties  in  difference,  and  did  thereby  then  and  there  award 
that,  etc.,  {here  set  forth  the  award;)  as  by  the  said  award, 
bearing  date,  etc.,  reference  being  thereunto  had,  will  more 
fully  appear.  And  this  the  defendant  is  ready  to  verify ; 
wherefore  he  prays  judgment,  etc 

Arbitrament  and  award  may  be  given  in  evidence  under 
the  general  issue  ;  but  it  is  frequently  advisable  to  plead  it, 
in  order  to  compel  the  plaintiff'  in  his  replication  to  take 
issue  on  some  particular  part  of  the  plea,  and  thereby  ad- 


224  ASSUMPSIT. 


Special  pleas — Judgment  recovered. 


mit  the  residue.  In  debt  on  a  specialty,  covenant  or  tres- 
pass it  must  be  pleaded  specially,  (a) 

The  above  form  can  be  varied  to  correspond  with  the 
arbitration-bond — or  the  submission,  written  or  verbal — the 
facts  in  relation  to  the  submission  and  award,  and  the  form 
of  action,  {b) 

No.  lOO.    Rcflicatioji  to  No.  99,  denying  the  azvard. 

{As  in  No.  71,  ante,  to  the  asterisk^  and  then  proceed :) 
that  the  said  arbitrators  did  not  make  any  such  award  con- 
cerning the  premises,  and  concerning  the  several  promises 
aforesaid,  in  manner  and  form  as  the  defendant  has  above 
in  that  plea  alleged  :  And  this  the  plaintiff  prays  may  be 
inquired  of  by  the  country,  etc. 

See  the  Illinois  statute  of  arbitrations  and  awards,  and 
the  cases  noted  below,  (c) 

No.  loi.     Plea  of  judgment  7'ecove?-ed. 

(^As  in  No.  70,  ante,  to  the  asterisk.,  and  then  proceed:^) 
that  the  plaintiff  heretofore  impleaded  him,  the  defendant, 

in  the  said court  of  the  said  county  of ,  to  the 

term  of  the  same  court,  in  the  year  18  —,  in  a  certain 

plea  of  trespass  on  the  case  on  promises,  to  the  damage  of 

the  plaintiff  of  dollars,  for  not  performing  the  very 

same  promises  in  the  said  declaration  mentioned ;  and  such 
proceedings  were  thereupon  had  in  that  plea,  that  after- 
wards in  that  same  term,  {or  in  whatever  term  the  judg- 
ment was  rendered,)  by  the  consideration  and  judgment  of 
the  same  court,  the  plaintiff  recovered  against  the  defend- 
ant the  sum  of dollars,  damages,  as  well  as  the  costs 

(rt)  Bac.  Abr.,  Arbit.,  G. ;  3  Chit.  PI.  927,  note;  i  Chit.  PI.  41S,  426, 
428,  441. 

ib)  See  precedent,  3  Chit.  PI.  927. 

(c)  Gross'  Stat.  25;  Breese,  SS,  295,  323;  2  Scam.  34,  4SS;  3  Scam.  245, 
322,  429,  453;  I  Gilm.  92;  2  Gilm.  252,  37S;  11  III.  565;  13  111.  293,  454;  14 
111.  58,  370,  392,  466;  15  111-  297,  368,  461;  16  111.  34,  99,  475;  17  III.  iii^ 
477,53s;  18  111.  437;  20111.111,301,383;  21111.259,553;  22111.300,411; 
25  111.  48,  67,  361,  522;  26  111.  216,  295,  305,  460;  27  111.  138,  158,  374;  28 
in.  56;  29  111.  90,  433;  30  111.  333,  482;  33  III-  299,  375;  36  111.  100,  439 i 
40  111.  267  ;  48  111.  31 ;  50  111.  232  ;  52  111.  427 ;  S3  HI-  252 ;  54  111.  205. 


ASSUMPSIT.  225 


Special  pleas — ^Judgment  recovered — Replication. 

of  the  plaintiff'  in  that  behalf,  whereof  the  defendant  was 
convicted ;  as  by  the  record  thereof  still  remaining  in  the 
same  court  more  full}^  appears  ;  which  said  judgment  still 
remains  in  full  force.  And  this  the  defendant  is  ready  to 
v(^rity  by  the  said  record ;  wherefore  he  prays  judgment  if 
the  plaintiff  ought  to  have  his  aforesaid  action,  etc. 

This  precedent  can  readily  be  adapted  to  different  forms 
of  action  ;  in  trespass,  for  example,  the  allegation  would 
be  that  the  former  action  was  "for  committing  the  very 
same  trespass,"  etc.  See  the  observations  under  the  pre- 
cedents of  pleas  of  payment  and  accord  and  satisfaction. 

A  judgment  recovered  may  be  given  in  evidence  under 
the  general  issue  in  assumpsit,  debt  on  simple  contract,  and 
case,  but  in  debt  on  a  specialty,  and  in  covenant  and  tres- 
pass, it  must  be  pleaded,  {d) 

If  a  judgment  has  in  fact  been  recovered,  it  is  advisable 
to  plead  it  specially,  {e) 

J\'o.  102.  ,  Replication  to  JVo.  lOi,  denying  that  the  causes 
of  action  were  the  same,  etc. 
{As  in  ]Vo.  71,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  several  promises  in  the  said  declaration  mentioned 
were  not,  nor  were  any,  nor  was  either  of  them,  the  same 
or  an}^  of  or  any  one  of  the  same  promises  as  those  or  any 
or  either  of  those  in  the  said  second  plea  mentioned,  and 
in  respect  whereof  the  supposed  judgment  in  the  same  plea 
mentioned  was  recovered,  in  manner  and  form  as  the  de- 
fendant has  above  in  that  plea  alleged  :  And  this  the  plaint- 
iff prays  may  be  inquired  of  by  the  country,  etc. 

It  would  seem  that  whenever  the  plaintiff  has  in  truth 
recovered  a  judgment,  for  a  cause  of  action  similar  to  that 
mentioned  in  the  declaration,  and  the  defendant  pleads 
such  recovery  in  bar,  a  new  assignment  is  necessary  ;  (_/') 
but  according  to  the  authority  of  some  cases,  the  plaintilf 

{d)  I  Chit.  PI.  418,  422,  426,  429,  432,  441  ;  Gould's  Pi.  303-311 ;  2  Gilm 
355;  6  Monroe,  2S4;  6  Hill,  124. 
(e)  3  Chit.  PI.  929,  note, 
(y)  I  Esp.  452;  3  Chit.  PI.  1213,  note.     See  i  Chit.  PI.  542,  ei  sea. 


226  ASSUMPSIT. 


Special  pleas — ^Judgment  recovered — Observations. 

may  take  issue  on  the  allegation  that  the  promises  are  the 
same,  by  a  replication  denying  it,  as  in  the  above  form,  (g-) 
for  which  see  a  precedent,  3  Chit.  PI.  1213.  A  case  in 
3  Lcvinz's  Reports,  p.  92,  is  cited,  in  which  it  was  held  that 
to  a  justification  in  trespass,  concluding  with  a  statement 
that  the  trespasses  mentioned  in  the  plea  were  those  men- 
tioned in  the  declaration,  the  plaintiff  could  not  reply  thai 
they  were  not  the  same,  without  showing  some  other  tres- 
pass, (/i)  See  a  form  of  new  assignment  to  a  plea  in 
abatement,  ajite,  No,  63. 

If  the  plaintiff  wishes  to  deny  the  alleged  former  recov- 
ery, the  replication  wall  be  nul  tiel  reco7'd,  which  can  be 
framed  from  the  precedent  No.  64,  ante. 

A  former  adjudication  upon  the  same  matters,  between 
the  same  parties,  is  a  bar  to  another  suit ;  (/)  but  not  where 
there  has  been  fraud  in  obtaining  such  adjudication,  if  the 
party  defrauded  is  not  estopped  by  want  of  diligence.  (/  ) 

A  judgment  on  demurrer  for  defect  in  the  pleadings,  or 
on  a  nonsuit  for  want  of  proof  or  for  a  variance,  or  on  a 
nonsuit  by  agreement  after  trial  on  the  merits,  will  not  be 
a  bar  to  another  action  for  the  same  cause  ;  {k)  and  if  such 
a  judgment  is  pleaded  in  bar,  the  plaintiff  may  reply  that 
the  same  was  not  obtained  on  the  merits.  (/)  It  is  not  to 
be  understood,  however,  that  a  judgment  on  a  demurrer  is 
in  no  case  a  bar.  {in) 

Where  the  promise  of  several  is  joint,  and  not  several,  a 
judgment  against  one  or  more  is  a  bar  to  another  action 
on  the  same  contract,  whether  against  the  same  or  other 

ig)  3  B.  &  Cres.  235  ;   6  T.  R.  607  ;  3  Wils.  3-4, 

[k)  3  Chit.  PI.    1213,  note. 

{i)  L3  111.  301  ;  14  111.  167;  15  111.  84  ;  16  111.  352;  17  111.  25  ;  39  III.  205; 
50  111.  176;  54  111.  79;  102  111.  115;  105  111.  224;  94  111.  52I;  80  111.  25:  14 
r.radvv.  55S  ;   115  111-  29, 

(/)   47  111.  2I6. 

[k)  17  111.  25  ;  19  111.  207;  35  111.  396  ;  ID  Pet.  301  :  21  Pick.  253;  5  Main  , 
1S5;  I  Chit.  PI.  i79;3Greenl.  Fv.,  sees.  35,36;  85  lil.  420;  105  111.  300;  in 
111.  53,342. 

(/j   I  Chit.  PI.  179;  I  Mod.  207;  Vin.  Ab.  Judgt.,  O.  4;  Bl.  Rep.  831. 

[m)   17  111.  25  ;  74  111.  306, 


ASSUMPSIT.  227 


Special  pleas — ^Judgment  recovered — Observations. 

parties  ;  («)  thus  a  judgment  against  one  member,  for  a 
debt  due  from  the  partnership,  is  a  bar  to  a  recovery  against 
the  other  members.  (<?) 

A  plaintiff  who  recovers  in  replevin  against  one  person, 
and  obtains  a  return  of  the  goods,  can  not  at'terwards  sue 
the  same  and  another  person  in  trespass  for  the  same  tak- 
ing ;  and  it  makes  no  difference  whether  the  damages 
awarded  in  the  replevin-suit  have  been  paid  or  not.  (  -p) 

It  is  said  that  "  if  the  damages  recovered  were  for  the 
deterioration  in  the  value  of  the  plaintiff's  property,"  (caused 
by  a  nuisance,)  "  such  recovery  would  be  a  bar  to  any  fur- 
ther prosecution  for  the  same  cause  ;  but  if  they  were  for 
annoyance  merely,  and  for  rendering  the  air  unwholesome, 
then  a  similar  recovery  might  be  had  at  every  term  of  the 
court,"  so  long  as  the  nuisance  should  continue.  (^) 

The  owner  of  property  alleged  to  have  been  injured  on 
a  railroad,  through  neglect  of  duty  on  the  part  of  the  en- 
gine-driver, may  elect  to  sue  either  the  driver  or  the  rail- 
road company  ;  but,  it  is  said,  when  a  jury  has  found,  in  an 
action  against  the  company,  that  there  was  no  negligence, 
it  is  a  bar  to  a  recovery  against  the  servant,  (r)  Where, 
however,  a  person  had  sued  a  city,  to  recover  damages  for 
injuries  received  by  reason  of  the  leaving  of  a  hatchway  in 
the  sidewalk  in  an  unsafe  condition,  and  there  was  judg- 
ment for  the  city,  it  was  held  that  this  was  no  bar  to  a  sub- 
sequent action,  by  the  person  injured,  against  the  person 
through  whose  negligence  the  accident  occurred,  although 
he  had  aided  in  the  defense  of  the  former  suit,  in  pursuance 
of  a  notice  given  to  him  by  the  city.  (5) 

(«)  19  111.  347;  15  Mass.  148;  II  Gill  &  Johns.  11;  5  Blackf.  55S;  Chit. 
Bills,  563,  564. 

{0)  2  Gilm.  355;  15  111.  415;  13  Mees.  &  Wcl.  494;  i  Denio,  224;  13  Serg. 
&  Rawle,  28S;  18  Ohio.  279. 

(/)  24  111.  580. 

(q)  50  111.  241. 

(;-)  34  111-  108. 

{s)  52  III.  189. 


22  8  ASSUMPSIT. 


Special  pleas — Tender. 


Verbal  testimony  may  be  admitted  to  show  what  was  ad- 
judicated upon  in  a  former  suit,  but  not  what  the  adjudica- 
tion was.  (t) 

The  principal  Illinois  cases,  not  already  cited,  relating 
to  this  subject,  are  given  in  the  note  below.  («) 

JVo.  103.      Tender — Non  assumpsit  except  as  to  the  swn 
tendered,  and  plea  of  tender  as  to  that  sunt. 

In  the Court. 

Term,  iS—. 


Assum-psit. 

And  the  defendant,  by  E.  F.,  his  attorney, 
comes  and  defends,  etc.,  when,  etc.,  and  as  to  all  the  sev- 
eral supposed  promises  in  the  said  declaration  mentioned 

except  as  to  the  sum  of dollars,  Uhe  sum  tendered,^ 

parcel  of  the  several  sums  of  money  in  the  said  declara- 
tion mentioned,  {or,  (f  some  of  the  counts  are  denied  alto- 
gether, say  "in  the  said_;fr5/  and  M/r^conuts mentioned,") 
says  that  he  did  not  promise  in  manner  and  form  as  the 
plaintiff'  has  above  complained  against  him,  the  defendant : 
And  of  this  he  puts  himself  upon  the  country,  etc. 

And  as  to  the  said  sum  of dollars,  parcel  of  the 

said  several  sums  of  money  in  the  said  declaration  men- 
tioned, {or  as  above,  in  the  parenthesis,)  the  defendant 
says  that  the  plaintiff  ought  not  to  have  his  aforesaid  action 
against  him,  the  defendant,  to  recover  any  greater  dam- 
ages than  that  sum  of  money,  because  he  says,  that  alter 
the  making  of  the  said  several  promises  in  the  said  decla- 
ration {or  "in  the  said counts")  mentioned,  as  to  the 

said  sum  of dollars,  parcel,  etc.,  and  before  the  com- 
mencement of  this  suit,  to  wit,  on,  etc.,  in,  etc.,  he,  the 
defendant,  was  ready  and  willing,  and  then  and  there  ten- 
dered and  offered,  to  pay  to  the  plaintiff  the  said  sum  of 
dollars,  parcel,  etc.,  to  receive  which  of  the  defend- 
ants the  plaintiff  then  and  there  wholly  refused  :  And  the 
defendant  further  says,  that  ever  since  the  making  of  the 

(0  15  IH- 84;  41  111- 76. 

(«)  IS  111.  420,  434;  16  111.  316;  19  111.  55;  33  111.  175;  40  111-  487;  41  111- 
76;  42  111.  303;  43  111.  504;  44  111.  336;  45  111.  277,  382;  46  111.  90,  271,  319; 
49  111.  45;  52  111.  272;  53  111.  171.  Also,  4  Scam.  172;  3  Gilm.  76;  5  Gilm. 
305,  422;   15  111.  5"  ;  16  111.  3S0;  37  111.  414;  43  111-  226;  54  111.  325. 


ASSUMPSIT.  229 


Special  pleas — Tender — Observations. 


said  several  promises  as  to  the  said  sum  of dollars, 

parcel,  etc.,  he  has  been,  and  still  is,  there  ready  to  pay 
to  the  plaintiff  that  sum  of  money  ;  and  the  defendant  now 
brings  the  same  into  the  court  here,  ready  to  be  paid  to  the 
plaintiff,  if  he  will  accept  the  same.  And  this  the  defend- 
ant is  ready  to  verify ;  wherefore  he  prays  judgment  if  the 
plaintiff  ought  to  have  his  aforesaid  action  to  recover  any 
greater  damages  than  the  said  sum  of dollars,  par- 
cel, etc. 

If  the  money  has  been  paid  into  court  before  plea 
pleaded,  say  "  and  the  defendant  has  paid  the  same  into 
the  said  court,  ready,"  etc. 

A  defendant  can  not  plead  non  assumpsit  as  to  the  whole 
of  the  demand,  and  a  tender  as  to  part,  but  must  qualify 
the  general  issue  and  his  other  pleas  as  above,  admitting 
the  liability  as  to  the  sum  tendered.  («)  As  to  that  sum 
no  other  plea  can  be  pleaded  than  that  of  tender,  {b) 

A  further  special  plea,  following  the  plea  of  tender, 
commences  thus:  "And  for  a  further  plea  in  this  behalf, 
as  to  all  the  said  several  supposed  promises  in  the  said 

declaration  mentioned,  except  as  to  the  said  sum  of  

dollars,  parcel,  etc.,  the  defendant  says  that  the  plaintiff 
ought  not  to  have  his  aforesaid  action,"  etc.  The  praver 
in  the  conclusion  is  for  "judgment  if  the  plaintiff  ought  to 
have  his  aforesaid  action  against  him,  the  defendant,  ex- 
cept as  to  the  said  sum  of dollars,  parcel,  etc."     In  a 

plea  of  set-off,  pleaded  with  a  plea  of  tender,  the  defend- 
ant alleges  that  the  "said  sums  of  money  so  due  from  the 
plaintiff  to  the  defendant  exceed  the  damages  sustained  by 
the  plaintiff  by  reason  of  the  non-performance  by  the  de- 
fendant of  the  said  several  supposed  promises,  except  as  to 

the  said  sum  of dollars,  parcel,  etc.,"  and  offers  to 

set  off,  out  of  the  sums  so  due,  "the  full  amount  of  the 

(a)  I  Chit.  PI.  478;  3  Chit.  PI.  922,  note;  4  T.  R.  194;  i  Camp.  184, 
note ;  Swan's  Pr.  709,  note. 

((&)  3  Chit.  PI.  Q22,  note;  3  Wills.  145;  2  Dla.  R.  723,  Swan's  Pr.  709, 
note. 


230  ASSUMPSIT. 


Special  pleas — Tender — Observations. 


gaid  damages,  except  as  aforesaid  ;"  and  if  money  has  been 
paid  into  com-t,  that  fact  is  alleged,  (c) 

An  actual  tender  must  in  general  be  averred.  It  seems, 
however,  that  if  the  plaintiff  expressly  dispensed  with  the 
production  of  the  money,  the  plea  should  specially  allege 
such  dispensation  or  discharge,  after  alleging  tiiat  the  de- 
fendant was  ready,  etc.,  and  was  about  to  tender,  etc.  (d) 

In  cledl  on  simple  contract,  the  defendant  pleads,  "as  to 
the  several  sums  of  money  in  the  said  declaration  men- 
tioned, and  thereby  demanded,  except  as  to  the  sum  of 
dollars,  parcel  thereof,"  m7  debet.  The  plea  of  ten- 
der then  follows,  in  nearly  the  same  form  as  in  assumpsit, 
but  in  the  commencement  and  conclusion  the  language  is, 
"to  recover  any  damages  by  reason  of  the  non-payment  of 
the  said  sum  of dollars,  parcel,  etc.  ;"  and  the  defend- 
ant alleges  a  readiness  to  pay  "  when  the  said  sum  of 

dollars,  parcel,  etc.,  became  due,"  and  ever  since,  and  a 
tender  of  that  sum  after  it  became  due,  etc.  (^j 

In  an  action  on  a  covenafit  for  the  payment  of  money, 
the  plea  of  tender  is  substantially  the  same  as  in  assumpsit, 
but  the  limitation  in  the  commencement  is  "as  to  the  sup- 
posed breach  of  covenant  Jirst  above  assigned,  so  far  as 

the  same  relates  to  the  sum  of dollars,  parcel  of  the 

sum  of  dollars  in  the  said  declaration   mentioned," 

etc.  ;  {/)  and  the  plea  alleges  that  "after  the  said  sum  of 

dollars,  parcel,  etc.,  became  due,"  etc.,  the  defendant 

was  ready,  etc.,  and  tendered,  etc.,  and  that  from  the  time 
that  sum  became  due  he  has  been  ready,  etc.,  and  con- 
cludes as  in  assumpsit,  but  with  the  additional  words,  "on 
occasion  of  the  said  supposed  breach  of  covenant  first 
above  assigned,  etc." 

In  an  action  for  a  trespass  committed  by  cattle,  to  land, 

(c)  3  Chit.  PI.  923,  924. 

{d)  Swan's  Pr.  709,  note;  5  M.  '&  Sc.  70;  i  Bing.,  N.  C.  253. 

{e)  3  Chit.  PL  955- 

(/)  3  Chit.  PI.  1021. 


ASSUMPSIT.  231 


Special  pleas — Tender — Replications. 


the  defendant  may  plead  a  tender  of  sufficient  amends  ;  (^"). 
and  in  replevin  for  cattle  taken  damage  feasant^  the 
plaintiff  may  plead  a  tender  of  amends  before  the  im- 
pounding. [Ji) 

A  tender  must  be  pleaded  specially,  in  every  form  of 
action.  (/) 

No.   104.      Similiter  to  general  issue,  and  replication  to 
pica  of  tender  i  denying  it. 

In  the Court. 

Term,  18 — . 


Asstanfsit. 

And  the  plaintiff,  as  to  the  plea  of  the  defend- 
ant by  liim  first  above  pleaded,  and  whereof  he  has  put 
himself  upon  the  country,  does  the  like. 

And  as  to  the  said  plea  of  the  defendant  by  him  above 

pleaded  as  to  the  said  sum  of dollars,  parcel,  etc.,  the 

plaintiff  says  that  he  ought  not,  by  reason  of  anything  in 
that  plea  alleged,  to  be  barred  from  having  his  aforesaid 
action  to  recover  further  damages  than  that  sum  of  money, 
because  he  says,  that  the  defendant  did  not  tender  or  offer 

to  pay  to  him,  the  plaintiff,  the  said  sum  of dollars, 

parcel,  etc.,  in  manner  and  form  as  the  defendant  has 
above  in  that  plea  alleged  :  And  this  the  plaintiff  prays 
may  be  inquired  of  by  tiie  country,  etc. 

When  a  tender  can  be  proved,  and  the  plaintiff-  is  pre- 
pared to  prove  more  to  be  due  than  the  sum  tendered,  the 
following  replication  is  proper,  (y) 
mm 

No.  105.     Re-plication  to  No.   103,  admitting  the  tender. 

(Similiter  to  general  issue^  as  in  last  precedent.^  And 
the  plaintiff,  inasmuch  as  he  can  not  deny  but  that  the  de- 
fendant did  tender  and  offer  to  pay  to  him,  the  plaintiff,  the 
said  sum  of dollars,  parcel,  etc.,  in  manner  and  form 

(^)  I  Chit.  PI.  441;  3  Chit.  PI.  1066. 
(A)  I  Chit.  PI.  511,  512;  3  Chit.  PI.  1198. 
(«■)  I  Chit.  PI.  420,  422,  426,429.  511. 
(J)  3  Chit.  PI.  1 156,  note;  i  Chit.  PI.  501. 


232  ASSUMPSIT. 


Special  pleas — Tender — Observations. 


•as  the  defendant  has  above  in  his  said  second  plea  alleged, 
freely  takes  and  accepts  the  same  out  of  the  court  here  ; 

therelore,  as  to  the  said  sum  of dollars,  the  plaintifi' 

is  satisfied,  etc. 

The  plaintiff  may  at  once  take  out  of  court  the  sum  ten- 
dered, even  though  he  denies  the  tender.  (X') 

The  plaintiff  may  reply  a  demand  made,  and  a  refusal 
to  pay,  before  (/)  or  after  (?/z)  the  tender — as  this,  if  estab- 
lished, shows  that  the  defendant  was  not  always  ready  and 
willing  to  pay.  («)  But  a  prior  demand,  in  order  to  defeat 
the  tender,  must  not  have  been  of  a  larger  sum  than  the 
amount  tendered  ;  (o)  and  to  sustain  a  replication  of  a  sub- 
sequent demand,  the  plaintiff  must  prove  a  demand  of  the 
precise  sum  tendered.  (_^) 

A  tender  is  siricti  Juris,  and  must  be  clearly  proved,  {q) 

A  tender  to  a  lawyer,  or  clerk,  who  is  authorized  to  col- 
lect the  money,  is  good,  {r) 

In  order  to  keep  a  tender  good,  it  is  not  necessary  to 
bring  the  money  into  court,  and  deposit  it,  but  it  is  suffi- 
cient if  the  money  is  in  readiness  when  ordered  by  the 
court ;  at  least  this  is  the  rule  in  equity,  {s) 

A  tender  must  be  kept  good,  and  the  money  must  be 
ready  to  be  delivered  within  a  reasonable  time  after  the 
acceptance  of  it  is  signified.  (/)  In  a  case  where  a  tender 
was  pleaded,  and  no  other  plea,  but  the  money  was  not 

[k)  2  Swan's  Pr.  709,  note. 

(/)  8  East,  160;  I  Saund.  33,  n.  2;  Bui.  N.  P.  156;  i  Cainpb.  478;  2 
Swan's  Pr.  710. 

{in)  3  Wentw.  iSo;  i  Campb.  iSi. 

(«)  See  forms,  3  Chit.  PI.  1154,  1155;   1  Chit.  PI.  501. 

(o)  See  5  B.  &  A.,  630;  i  Esp.  151;  i  Campb.  181;  Ry.  &  Moody, 
C.  N.  P.  360. 

{p)  5  B.  &  A.  630.     See  3  Wentw.   iSo;  i  Campb.  iSi. 

iq)   12  111.  336  ;   3  Bosw.  (N.  Y.)  42,  376  ;  27  111.  162. 

(r)  U  Eng.  Com.  Law,  385.  See  2  Starr  &  Curtis'  An.  Stat.  2387;  "Rev. 
Stat.  (1877)  997. 

(s)  II  111.  254;  II  Iowa,  30;  38  N.  H.  191  ;  36  111.  iS;   109  111.  4S7. 

(/)  i6Ill.  262;  12  111.  86;  24  Pick.  16S;  28  III.  463;  36  111.  513;  41  111. 
267;  35  111.  158. 


ASSUMPSIT.  233 


Special    pleas — Tender — Observations. 


brought  into  court,  and  the  defendants  refused  to  comply 
with  an  order  to  bring  it  in,  it  was  held  proper  for  the  court 
to  disregard  the  plea,  and  give  judgment  for  the  plaintiffs ; 
or,  it  was  said,  the  plea  might  have  been  stricken  from  the 
files,  {u) 

A  person  making  tender  can  not  insist  upon  a  receipt  in 
full,  but  he  must  rely  on  the  tender,  (y)  To  avoid  costs  it 
must  be  made  before  the  suit  is  commenced,  (zu) 

By  the  statute  "'A  tender  may  also  be  made  after  an  action 
is  brought  upon  any  contract,  of  the  whole  sum  due  thereon, 
with  the  legal  costs  of  suit  incurred  up  to  the  time  of 
tender.  (,i-)  But  it  does  not  apply  to  unliquidated  damages 
growing  -out  of  a  contract,  [j') 

A  person  guilty  of  a  tort  may  avoid  costs  by  a  tender  as 
provided  in  section  6  of  chapter  entitled,  "Tender."  {s) 

An  actual  count  of  money  may  not  be  required  if  the  party 
to  whom  it  is  offered  absolutely  refuses  to  receive  it.  But 
this  may  not  dispense  with  the  existing  ability  to  make  the 
payment,  and  having  the  money  within  convenient  reach,  (a) 

The  money  tendered  must  at  all  times  be  kept  in  readiness 
for  the  creditor,  and  not  used  by  the  debtor,  and  when 
pleaded  at  law  it  must  be  brought  into  court  for  the  creditor- 
It  is  in  this  way  only  that  the  debtor  can  escape  the  payment 
of  interest  and  costs.   {/?) 

Plea  of  tender  admits  the  amount  named  therein  to  be  due, 
and  he  is  estopped  from  denying  it;  {c)  but  only  to  that 
extent,  and  no  further,   (d) 

(u)  12  111.  86. 

(v)   12  Mass.  450;  2  Grant's  Cases  (Penn.),  393  ;  14  Ind.  105  ;  36  111.  513. 

{7v)  6  Jones'  Law  (N.  C),  126;  5  Clarke  (Iowa),  481. 

(x)  2  Starr  &  Curtis' An.  Stat.  2386;  R.  S.  (1877)997;  54  IH-  215;  7S  111.429. 

( y)  62  111.  232 ;  5  Bradw.  643. 

(s)  2  Starr  Sl  Curtis'  An.  Stat.  2387;  Rev.  Stat.  997;  89  111.  590;  i  Bradw.  283, 

(a)  21  111.  570;  6  Pick.  356;  22  111.  643;  105  111.  ;i;i;  119  III.  426. 

(6)  109  111  4S7;  86  111.  431,  470;  I  Scam.  445;  92  111.  604  ;  41  111.  267  ;  2 
Gilm,  679;  17  Johns.  278;  36  111.  18;  12  111.85;  35  111.  158;  70  111.  85;  8 
Cow.  271;  II  III.  241;  106  111.  99. 

(f)  78  111.  429;    Chitly  on  Contracts,  793,  802;   54  111,  215. 

{d)  101  111.  70.     See  119  111.  362. 


234  ASSUMPSIT. 


Special  pleas — Plea  by  surety. 


A  tender  of  money  in  a  handkerchief,  with  a  statemen) 
of  the  amount  and  kind,  is  sufficient,  {c)  But  a  tender 
must  be  of  specific  sum,  and  without  any  .terms  or  condi- 
tions, (d)  Unless  objection  is  made  to  the  kind  of  money 
oflered,  a  tender  of  bank  notes  is  good,  (e) 

See,  on  the  subject  of  tender  generally,  the  additional 
Illinois  cases  given  in  the  note.  (_/") 

JVb.  io6.  Pica  by  surety,  {to  declaration  on  ■promissory 
note,  with  coinuwn  counts,)  that  -without  his  assent  cred- 
itor gave  further  time  to  -prmcirpal. 

{First  flea,  non  assumpsit,  as  ante.  No.  66.)  And  for 
a  further  plea  in  this  behalf,  the  said  E.  F.  says  that  the 
plaintiff  ought  not  to  have  his  aforesaid  action  against  him 
the  said  E.  F.,  because  he  says,  that  the  several  supposed 
causes  of  action  in  the  said  declaration  mentioned  are  one 
and  the  same,  to  wit,  the  supposed  cause  of  action  in  the 
said  first  count  mentioned,  and  not  different  causes  of  ac- 
tion ;  and  that  the  promissory  note  in  that  count  mentioned 
was  made  and  delivered  to  the  flaintiff\>y  the  said  C.  D. 
{the  other  defendant)  as  principal  debtor,  and  by  him  the 
said  E.  F.  as  surety  for  the  said  C.  D.,  and  not  otherwise, 
whereof  the  plaintiff',  at  the  time  of  the  making  and  de- 
livery of  the  said  note  as  aforesaid,  there  had  notice;  (*j 
and  that  when  {or  "before,"  or  '•  after,"  «5 //^6?  case  may 
be,)  the  said  note  became  due,  to  wit,  on,  etc.,  the  plaintiff, 
at  the  request  of  the  said  C.  D.,  and  in  consideration  {here 
state  the  consideration,  according  to  the  fact,)  there  agreed 
with  the  said  C.  D.  to  give,  and  did  then  and  there  give  to 
him  further  day  of  payment  of  the  amount  of  the  said  note, 
to  wit,  urrtil  the day  of then  next  ensuing,  with- 
out the  knowledge  or  consent  ot  him  the  said  E.  F.  ;  by 
reason  whereof  he  the  said  E.  F.  became  discharcjed  from 

(c)  4  Ind.  loi.     See  22  III.  127. 

{d)  36  111.  513. 

(e)  9  Pick.  539;   13  Mass.  235,  236. 

(/)  2  Scam.  61 ;  4  Scam.  186,  202,  305;  z  Gilm.  679;  11  111.  241,  254; 
18  111.  333;  21  111.  4S1;  22  111.  130;  26  111.  396;  27  111.  93;  28  111.  304;  35 
111.  SS,  452,  455;  39  111.  87,  228,  354,  36S;  40  111.  171,  368,  371;  41  111.  19, 
iSo,  207;  42  111.  78;  43  111.  372,462;  44  111.  135,  264;  46  111.  173,  35 1,  392; 
47  111-  354;  48  111.  3«S;  50  111.  290. 


ASSUMPSIT.  235 


Special  pleas — Plea«bj  surety — ODserrations. 


all  liability  upon  the  said  note.     And  this  he  the  said  E.  F 
etc.  {conclude  with  a  vcrijication,  as  in  JVo.  70,  ante.) 

It  seems  this  defense  may  be  proved  under  the  general 
issue,  {a) 

Matters  afTecting  the  surety  only,  should  be  pleaded  by 
him  alone,  {b) 

To  the  above  plea  the  plaintiff  may  reply  that  the  de- 
fendant did  not  execute  the  note  as  surety ;  or  that  there 
was  no  such  agreement  as  therein  alleged  ;  or  that  the  giv- 
ing of  lurther  day  of  payment  was  with  the  knowledge 
and  consent  of  the  surety,  or  was  ratified  by  him. 

In  England  the  rule  is  said  to  have  prevailed,  that  the 
remedy  of  the  surety,  where  further  day  of  pavment  has 
been  given  without  his  consent,  is  only  in  chancery,  unless 
the  fact  that  he  is  such  surety  appears  on  the  face  of  the 
contract ;  and  some  courts  in  the  United  States  have  fol- 
lowed the  same  rule.  But  the  weight  of  authority,  in  this 
country,  is  to  the  effect  that  the  surety  may  show  that  such 
was  his  relation  to  the  contract,  and  avail  himself  of  this 
defense,  in  a  suit  at  law,  although  h :  appears  as  a  prin- 
cipal in  the  contract,  [c) 

A  person  who  signs  a  bond  as  surety  with  another,  who 
appears  to  have  signed  the  bond,  but  whose  name  thereto 
has  been  forged,  will  not  be  liable  on  suclf  bond,  (d) 

Where  a  note  is  taken,  with  personal  security,  and  at 
the  same  time  other  security  therefor — as  for  in^ance  a 
mortgage  on  land — is  existing  or  taken,  the  destruction  of 
such  other  security,  by  the  holder  of  the  note,  without  the 
consent  of  the  sureties,  will  release  the  latter,  [e) 

The  contract  of  a  surety  is  to  be  construed  strictly,  both 

(a)  20  111.  148. 
{b)  50  111.  88. 

(c)  27  111.  323 ;  32  111.  399 ;  46  111.  428 ;  21  Pick.  195 ;  9  Met.  511:5  Denio, 
509;  5  Ham.  207;  Pars,  on  Notes,  233. 
(rf)  27  111.  173. 
Ke)  46  111.  428. 


236  ASSUMPSIT. 


Special  pleas — Plea    by  surety — Observations. 


at  law  and  in  equity,  and  his  liability  is  not  to  be  extended 
by  implication  beyond  the  terms  of  his  undertaking,  as  un- 
derstood when  the  contract  was  made.  {/) 

It  is  a  general  rule  that  mere  delay  to  sue  does  not  dis- 
charge the  surety  ;  [g)  but  where  a  creditor,  without  the 
assent  of  the  surety,  gives  farther  time  of  payment  to  the 
principal,  the  surety  is  discharged,  both  at  law  and  in 
equity,  [h) 

A  promise  to  delay  the  collection  of  a  debt  for  an  uncer- 
tain period  will  not  discharge  a  surety.  (/)  To  discharge 
the  surety  by  extension  of  time,  there  must  be  a  sufficient 
consideration,  and  a  time  definitely  fixed.  {J)  But  an 
equitable  estoppel  may  sometimes  result,  which  will  pre- 
vent a  recovery  against  a  guarantor,  where  an  agreement 
has  been  executed,  although  there  was  no  consideration 
for  such  agreement,  {k) 

An  agreement,  for  a  good  consideration,  between  the 
holder  of  a  note  and  the  principal,  to  extend  the  time  of 
payment  for  a  definite  period,  will  discharge  the  surety, 
unless  he  consents  to  such  agreement  at  the  time,  or  sub- 
sequently ratifies  it.  (/) 

To  enable  a  surety  to  interpose  the  defense  to  a  note  that 
further  time  was  given  to  the  principal,  it  is  not  necessary 
that  his  name  should  appear  upon  the  note  as  surety.  It 
will  be  sufficienfif  he  was  actually  a  surety,  and  this  was 
known  to  the  payee  when  the  note  was  given ;  {m)  and  the 

(/)  I  Scam.  35;  3  Scam.  123;  I  Gilm.  5S1;  2  Gilm.  570;  14  111.  20;  27  111. 
323;  10  Braclw.  318;  14  Bradw.  439. 

(g)  Breese,  203;.  II  111.  341,  352;  15  Ind.  45  ;  2  Pick.  581,  See  26  111.  469; 
10  Bradw.  330;  72  111.  301. 

{h)  I  Gdm.  409;  21  111.  129;  32  111.  399;  24  Texas,  383;  49  111.  370.  See  35 
111.  40;  53  111.  126, 

(?)  13  III.  347;  34  Miss.  655;  4  Leigh,  622;  67  111.  204. 

[j)  13  111.  347;  2  Gilm.  570;  34  111.  424;  6  Ind.  461,  4  Blackf.  241;  3  Blnckf. 
92;  I  Blackf.  392;  8  Bradw.  256;  78  111.  257. 

[k)  31  111.  422. 

(/)    27  111.  323;  21  111.   129;  31   111.  400;    34  111.  424;   102  111.  428. 

(;«)  27  111.  323;  32  III.  399;  21  Pick.  195;  5  Deni'j,  509;  46  111.  428. 


ASSUMPSIT.  237 


Special  pleas — Plea  by  surety — Observations. 


fact  that  he  was  a  surety  may  be  proved  b}^  verbal  testi- 
mony. The  payee  of  a  note  is  presumed  to  know  the  re- 
lation which  the  parties  thereto  sustain  to  each  other,  and 
to  accept  the  note  with  that  knowledge,  (n) 

The  payment  of  interest  upon  a  note  in  advance,  is  a 
sufficient  consideration  to  support  an  agreement  with  the 
principal  for  an  extension  of  time,  so  as  to  discharge  the 
surety.  (0) 

An  agreement,  after  the  maturity  of  a  note,  to  pay  the 
interest  thereon  at  the  rate  therein  specified,  and  also  one 
hundred  dollars  every  month  until  it  is  discharged,  entered 
into  between  the  payee  and  the  principal  debtor,  without 
the  knowledge  or  consent  of  a  surety,  does  not  constitute  a 
valid  agreement  to  extend  the  time  of  payment ;  not  being 
supported  by  a  new  consideration,  it  will  not  discharge  the 
surety  from  liability  on  the  note,  (p) 

Any  operative  agreement,  founded  upon  a  valuable  con- 
sideration, by  which  the  holder  of  a  note  agrees  to  give 
time  to  the  principal,  without  the  assent  of  the  surety,  will 
release  the  latter  ;  and  this  whether  before  or  after  the  ma- 
turity of  the  note,  (q)  The  agreement  must  however  be  a 
binding  one,  and  not  unlawful  by  reason  of  usury  or  other 
matter,  (r) 

Any  change  in  an  agreement,  without  the  assent  of  the 
surety,  releases  him  ;  (s)  but  it  is  otherwise  if  he  consents 
to  or  approves  of  such  change.  (/) 

A  parol  agreement  to  vary  a  contract  under  seal  can  not 
be  pleaded  in  a  court  of  law  to  defeat  a  recovery  on  such 
contract ;  and  such  an  agreement  will  not  discharge  a  surety 
from  liability,  {u) 

(«)  32  111.  399. 

(0)  26  111.  2S2 ;  27  111.  323 ;  28  111.  4S1 ;  34  111.  424. 

iP)  34  111.  424.     See  13  111.  347- 

(^)  20  111.  148;  26  111.  282.     See  35  111.  40. 

(r)  53  111.  126. 

(5)  23  111.  64;  21  111.  129;  5  B.  &  C.  269;  7  M.  &  W.  55;  6  Wend.  236. 

(/)  21  111.  129;  31  111.  400. 

(u)  20  111.  loi.     But  see  31  111.  422. 


238  ASSUMPSIT. 


Special  pleas — Plea,  by  surety,  of  notice  to  holder  to  sue. 

Any  consideration  which  is  sufficient  to  support  the 
promise  of  the  principal  will  sustain  the  promise  of  the 
suret}'.  {v) 

The  undertaking  of  a  surety  is  absolute  in  its  terms,  and 
he  is  not  permitted  to  discharge  himself  by  requesting  the 
creditor  to  proceed  against  his  principal,  (za)  The  rights 
of  the  creditor  against  tiie  surety  are  not  impaired  by  mere 
delay,  except  where  the  surety  has  the  right  to  require  the 
creditor  to  prosecute  the  principal,  and  insists  on  the  right 
by  giving  notice  in  writing  to  prosecute,  (x) 

If  the  holder  of  a  note,  by  agreement  with  the  maker, 
for  a  good  consideration,  extends  the  time  of  payment, 
a  suret}^  in  such  note  is  thereby  discharged  ;  and  if  a  judg- 
ment is  entered  against  such  surety,  without  notice  to  him, 
upon  a  cognovit,  he  may  obtain  relief  in  equity,  (j) 

We  will  next  consider  when  a  surety  may  discharge  him- 
self by  giving  the  creditor  written  notice  to  prosecute  the 
principal. 

No.  107.  Plea  by  stirety,  {to  declaration  on  -pi-omissory 
note,  with  common  counts,)  that  cf'cditor  was  required 
in  writing  to  put  note  in  sjiit,  but  did  not. 

As  in  the  last  precedent,  to  the  asterisk,  and  then  pro- 
ceed:) and  that  after  the  said  note  became  due,  to  wit,  on, 
etc.,  he  the  saidE.  F.  (apprehending  that  the  said  C.  D. 
was  likely  to  become  insolvent,  \_or,  "to  migrate  from  this 
state,"]  without  previously  discharging  the  said  note,  so 
that  it  would  be  impossible  or  extremely  difficult  for  him 
the  said  E.  F.,  after  being  compelled  to  pay  the  money  due 
by  the  said  note,  to  recover  the  same  from  the  said  C.  D.,) 
did  there  require  the  plaintiff,  by  notice  in  writing,  forth- 
with to  put  the  said  note  in  suit ;  but  that  nevertheless  the 
plaintiff  did  not  within  a  reasonable  time  thereafter  com- 
mence suit  on  the  said  note,  and  proceed  with  due  dili- 
gence, in  the  ordinary  course  of  law,  to  recover  a  judgment 

(f)  I  Gilm.  525;  15  Peters,  290;  8  Johns.  29. 
(w)  13  111.  376;  8  Blackf.  190. 
(*)  II  111.  341,  352;  34  Miss.  655. 
00  28  111.  481:31  111.  258. 


ASSUMPSIT.  239 


Special  pleas — Plea,  by  surety,  of  notice  to  holder  to  sue — Observations. 

for,  and  by  execution  to  make,  the  amount  due  by  the  said 
note;  by  means  whereof,  and  by  force  of  the  statute,  etc., 
the  plaintiff  has  forfeited  all  right  to  demand  that  amount 
of  him  the  said  E.  F.  And  this  he,  etc.  {conclude  with  a 
verification,  as  in  No.  70,  ante.) 

The  first  section  of  the  statute  entitled,  "  Sureties  "  pro- 
vides 

"That  when  any  person  bound  as  surety  for  another  for  the 
payment  of  money,  or  the  performance  of  any  other  contract 
in  writing,  apprehends  that  his  principal  is  likely  to  become 
insolvent  or  to  remove  from  the  state,  without  discharging 
the  contract,  if  a  right  of  action  has  accrued  on  the  contract, 
he  may,  by  writing,  require  the  creditor  forthwith  to  sue  upon 
the  same;  and  unless  such  creditor  shall  within  a  reasonable 
time,  and  with  due  diligence,  commence  suit  thereon,  and 
prosecute  the  same  to  final  judgment  and  execution,  the 
surety  shall  be  discharged  ;  but  no  such  discharge  shall  in 
any  case  affect  the  rights  of  the  creditor  against  the  principal 
debtor."  {z) 

To  release  the  surety  there  must  be  a  written  notice  by 
him  to  the  holder  of  the  obligation  to  bring  suit,  served  per- 
sonally, and  a  neglect  to  comply  therewith.  {<i) 

A  plea  by  a  surety,  which  is  substantially  in  the  language 
of  the  statute,  is  sufficient.  {6) 

In  the  case  in  19  111.  103,  the  plea  contained  no  aver- 
ment of  notice  that  the  defendant  was  a  surety  in  the 
note,  but  alleged  that  he  '"signed  the  said  note  as  secu- 
rity;" and  the  court,  holding  it  good,  said  that  to  sustain 
tliat  plea  it  must  appear  on  the  face  of  the  note  that  the 
defendant  signed  it  in  that  character.  But  it  would  seem 
from  the  case  in  32  111.  Rep.  399,  that  where  a  surety  in  a 
promissory  note  seelcs  to  avail  himself  of  a  failure  on  the 
part  of  the   creditor,  after    notice    given,  to  bring    suit,  the 

(z)  2  Starr  &  Curtis'  An.  Stat.  2372;  Rev.  Stat.  (1877)  993;  67  111.  204,  S3 
111.  368;  13  111.  376;   99  111.  272. 

(«)  85  111.  22;  10  Bradw.  31S;  8  Bradw.  256. 
{b)  18  111.  249;  19  III.  103, 


240  ASSUMPSIT. 


Plea  of  surety — Death  of  principal,  etc. 


defendant  signed  it  in  that  character.  But  it  would  seem 
from  the  case  in  32  III.  Rep.  399,  that  where  a  surety  in  a 
promissory  note  seeks  to  avail  himself  of  a  failure  on  the 
part  of  the  creditor,  after  notice  given,  to  bring  suit,  the 
suretyship  may  be  established  by  evidence  outside  of  the 
note.  To  allow  this,  the  court  say,  does  no  violence  to  the 
rule  that  a  written  instrument  can  not  be  varied  by  verbal 
testimony,  for  such  proof  of  the  suretyship  does  not  affect  the 
terms  of  the  contract,  but  merely  establishes  a  collateral  fact, 
and  rebuts  a  presumption. 

The  gratuitous  giving  of  time  by  creditor  to  principal 
does  not  discharge  the  surety,  though  the  latter  gave  verbal 
notice  to  the  creditor  to  sue  the  principal,  who  was  then 
solvent,  but  afterwards  became  insolvent,  {c)  But  if  the  notice 
given  was  in  writing,  the  creditor  must  sue  in  a  reasonable 
time,  or  the  surety  will  be  discharged,  (d) 

See  statute  relating  to  sureties  on  official  bonds,  sureties 
on  executor's,  administrator's  and  guardian's  bonds,  and  sure- 
ties on  negotiable  instruments,  etc. 

Death  of  principal — Diligence  against  estate. — Section  3  of 
the  act  relating  to  sureties,  provides,  that 

"  Whenever  the  principal  maker  of  any  note,  bond,  bill  or 
other  instrument  in  writing  shall  die,  if  the  creditor  shall  not, 
within  two  years  after  the  granting  of  letters  testamentary  or 
of  administration,  present  the  same  to  the  proper  court  for 
allowance,  the  sureties  thereon  shall  be  released  from  the  pay- 
ment thereof  to  the  extent  that  the  same  might  have  been 
collected  of  such  estate  if  presented  in  proper  time,  but  this 
section  shall  not  be  construed  to  prevent  the  holder  of  any 
such  instrument  from  proceeding  against  the  sureties  within 
said  two  years."  {e') 

But  the  holder  is  not  prevented  from  suing  surety  within 
the  two  years  allowed  for  filing  claims.  The  holder's  right 
is  barred  only  by  a  failure  for  two  years, to  file  a  claim 
against  the  estate,  and  failing  to  sue  the  surety.  He  may  sue 
surety  during  such  period.  (/) 

{c)  8  Blackf.  igj  ;  72  111.  301  ;  9  Ind.  245.      See  13  111.  376. 
{d)  5  Blackf.  312  ;  2  Ind.  507;  18  111.  250;  32  111.  399. 

(<f)  2  Starr  &  Curtis'  An.  Stat.  2373;  Rev.  Stat.  ^1877)  993;  83  111.  368;  90 
111.  606  ;  10  Bradw.  318. 

(/)   14  Bradw.  439  ;  67  111.  204. 


ASSUMPSIT.  241 


Special  pleas — Breach  of  warranty,  etc. 


JVo.  108.     Pica  of  breach  of  tvarranty,  etc.     {To  decla- 
ration on  -promissory  note,  with  common  counts.) 

{First  -plea.,  non  assumpsit,  as  ante,  No.  66  ;  second  -plea 
as  in  No.  70,  ante,  to  the  asterisk.,  and  then  proceed:)  that 
the  several  supposed  causes  of  action  in  the  said  declara- 
tion mentioned  are  one  and  the  same,  to  wit,  the  supposed 
cause  of  action  in  the  said  first  count  mentioned,  and  not 
different  causes  of  action  ;  and  that  heretofore,  to  wit,  on, 
etc.,  aforesaid,  in  consideration  that  the  defendant  would 
buy  of  the  plaintiff,  at  his  request,  a  certain  boiler,  at  the 

price  of dollars,  and  would  pay  him  the  sum  of  

dollars,  parcel  of  the  said  price,  and  would  make  and  de- 
liver to  him  the  promissory  note  of  the  defendant  for  the 

residue  thereof,  payable  to  the  order  of  the  plaintiff  

months  after  that  day,  the  plaintiff  promised  him,  the  de- 
fendant, that  the  said  boiler  was  then  sound,  and  fit  for  the 
purpose  of  driving  the  machinery  of  a  certain  mill  of  the 
defendant ;  and  thereupon  the  defendant,  confiding  in  that 
promise,  then  and  there  bought  of  the  plaintiff  the  said 
boiler,  and,  upon  the  sole  consideration  of"  the  same  prom- 
ise and  of  the  sale  of  the  said  boiler  as  aforesaid,  paid  to 

him  the  said  sum  of  dollars,  parcel  of  the  said  price, 

and  made  and  delivered  to  him  the  promissory  note  of  the 
defendant  for  the  residue  thereof,  as  aforesaid,  which  is  the 
same  note  in  the  said  first  count  mentioned  :  yet  the  plaintiff 
did  not  regard  his  said  promise,  but  thereby  deceived  and 
defrauded  the  defendant,  in  this,  to  wit,  that  the  said  boiler, 
at  the  time  of  the  making  of  the  said  promise  of  the  plaint- 
iff, was  not  sound,  and  fit  for  the  purpose  of  drivino-  the 
machiner}'  of  the  said  mill,  but  on  the  contrary  thereot  was 
then  unsound,  and  unfit  for  that  purpose,  whereby  the  said 
boiler  became  and  was  of  no  use  or  value  to  the  defendant ; 
and  by  reason  of  the  unsoundness  and  unfitness  of  the  said 
boiler  as  aforesaid,  the  same  afterwards,  to  wit,  on,  etc., 
there  burst  and  was  destroyed,  whereby  the  defendant  suf- 
fered damage  and  loss  of  his  property  to  the  amount  of 

dollars.     And  this,  etc.  {conclude  with  a  verif  cation, 

as  in  No.  7c,  ante.) 
16  ' 


I 


242  ASSUMPSIT. 


Special  pleas — Breach  of  warranty,  etc. — Observations. 

Damages  arising  from  a  breach  of  warranty  may  be 
proved  under  the  general  issue,  by  way  of  recoupment,  {/i) 

See  the  observations  under  the  forms  of  declarations  on 
warranties,  afite,  and  the  authorities  there  cited  ;  and  see 
also  the  authorities  hereafter  cited,  relating  to  want  and 
failure  of  consideration. 

A  plea  which  avers  that  a  note  was  given  for  a  boiler 
and  fire-place,  and  for  the  warranty  of  the  same  to  be  of  a 
certain  quality,  and  avers  a  breach  of  that  warranty,  and 
that  they  were  valueless,  shows  a  failure  of  consideration, 
and  is  a  good  plea.  (/) 

A  manufacturer  who  sells  a  boiler,  impliedly  warrants 
that  it  is  well  made,  and  of  sound  material,  {j} 

Where  a  manufacturer  vends  his  own  articles,  there  is  an 
implied  warranty  that  they  are  manufactured  in  a  work- 
manlike manner.  It  is  otherwise  if  he  is  only  a  vendor ; 
in  that  case,  if  there  is  neither  fraud  nor  warranty,  the  pur- 
chaser buys  at  his  peril,  (k) 

If  a  purchaser  directs  as  to  the  manufacture  of  an  article, 
the  manufacturer  is  not  then  held  liable  for  any  insuffi- 
ciency caused  by  following  such  direction.  {/) 

No  particular  form  of  words  is  necessary  to  establish  a 
contract  of  warranty,  but  it  must  appear  that  the  alleged 
warrantor  intended  to  bind  himself  to  make  good  the  qual- 
ity of  the  article  sold ;  and  the  evidence  should  show  that 
this  made  part  of  the  consideration  of  the  bargain,  (w) 

A  warranty,  in  order  to  be  valid,  must  be  made  at  the 
time  of  sale ;  or  if  made  afterwards,  it  must  be  upon  a  new 
consideration,  {n) 

(A)  18III.  420;  21  111.  iSo.     See  14  111.  424;  18  111.  55;  27  111.  175;  7  East, 
479;  I  Camp.  38;   Story  on  Sales,  393. 
(/)  16  111.  69.     See  48  111.  133. 
(/)  16  111.  69;  32  111.  253.     See  53  111.  245. 
(/t)  19  111.  565  ;  4  Gilm.  69;  48  111.  75  ;  52  111.  4S6. 
(/)  19  111.  565. 

(w)  15  111.  345;  II  111.  35 ;  5  Gilm.  36;  36  111.  81.     See  53  111.  466. 
(«)  2  Scam.  23. 


ASSUMPSIT.  243 


Special  pleas — Breach  of  warranty,  etc. — Observations. 

Where  a  party  is  to  deliver  a  quantity  of  corn,  (not 
bought  on  inspection,)  under  an  executory  contract,  the 
law  will  imply  a  warranty  that  it  is  to  be  of  a  fair  and  mer- 
chantable quality,  {o)  The  acceptance  of  the  corn  by  a 
warehouseman,  or  by  the  purchaser  himself,  is  not  a  waiv'er 
of  this  implied  warranty,  {p) 

The  purchaser  of  an  article  not  warranted  as  to  quality, 
must  take  the  hazard  of  his  bargain.  If  he  was  not  to 
keep  the  article  purchased,  unless  it  suited  him,  he  should 
return  it,  if  it  does  not  suit  him,  at  the  earliest  practicable 
moment,  {q) 

Where  wheat  is  sold  in  stack,  there  is  an  implied  war- 
ranty that  it  is  merchantable,  (r) 

If  an  administrator  takes  upon  himself  to  warrant  per- 
sonal property  sold  by  him,  the  maker  of  a  note  given  for 
such  property  may  show  a  breach  of  the  warranty,  and 
consequent  failure  of  consideration.  (5) 

Damages  for  a  breach  of  warranty  of  chattels  sold  may 
be  recovered  in  an  independent  suit,  or  they  may  be  re- 
couped or  set  off  in  an  action  on  the  contract  of  sale.  And 
a  notice  of  the  defect,  or  an  offer  to  return  the  property,  is 
unnecessary  in  order  to  recover  damages,  [t) 

Where  diseased  cattle  are  sold  under  a  warranty  of  their 
healthiness,  the  measure  of  damages  is  the  difference  be- 
tween the  contract  price  and  their  value  in  their  diseased 
condition,  at  the  time  of  delivery,  together  with  the  amount  of 
any  other  immediate  damages  resulting  from  the  breach  of 
warranty.  And  in  a  case  where  cattle  were  so  sold,  and  the 
seller  knew  at  the  time  that  they  were  designed  to  be  sent 
directly  to  New  York,  to  be  sold  for  beef,  and  the}-  were 
so  sent,  it  was  held  that  expenses  incurred  on  such  of  the 

(tf)  18  111.  420;  4  Gilm.  69;  Pars.  Con.  465,  466. 

(/)  18  111.  420;  41  111.  207;  Chit.  Cont.  401 ;  8  M.  &  Wels.  858. 

iq)  20  111.  285;  10  Cush.  88. 

(r)  22  111.  28S. 

(5)  24  111.  117. 

(0  21  111.  i8o;  Chit.  Cont.  362,  363. 


244  ASSUMPSIT. 


Special  pleas — Want  or  failure  of  consideration — Statute. 

cattle   as   died,  or  showed   disease,  before  reaching  New 
York,  were  immediate  damages,  (ii) 

A  representation  which  is  positive,  and  relates  to  a  mat- 
ter of  fact,  will  constitute  a  warranty.  But  where  the  rep- 
resentation relates  to  that  which  is  a  matter  of  opinion  or 
fanc}^,  it  is  to  be  regarded  as  an  expression  of  opinion 
rather  than  as  such  a  statement  of  fact  as  will  amount  to  a 
warranty,  unless  that  idea  is  excluded  by  an  express  war- 
ranty, or  such  other  declarations  as  leave  no  doubt  of  the 
intention  to  make  a  warranty,  (v) 

Where  a  person  selling  a  breast  pin  asserts  positively  that 
it  is  a  diamond,  such  assertion  amounts  to  a  warranty,   (m) 

A  warranty  of  soundness  in  a  horse  or  mule  sold,  amounts 
to  a  warranty  against  any  defect  which  renders  it  not  capable 
of  immediate  use,  (.r) 

Want  orfaibire  of  consideration. — The  9th  section  of  chapter 
98,  in  regard  to  negotiable  instruments,  provides,  that 

"  In  any  action  upon  a  note,  bond,  bill,  or  other  instrument 
in  writing,  for  the  payment  of  money  or  property,  or  the  per- 
formance of  covenants  or  conditions,  if  such  instrument  was 
made  or  entered  into  without  a  good  and  valuable  considera- 
tion, or  if  the  consideration  upon  which  it  was  made  or 
entered  into  has  wholly  or  in  part  failed,  it  shall  be  lawful  for 
the  defendant  to  plead  such  want  of  consideration,  or  that  the 
consideration  has  wholly  or  in  part  failed ;  and  if  it  shall 
appear  that  such  instrument  was  made  or  entered  into  with- 
out a  good  or  valuable  consideration,  or  that  the  consideration 
has  wholly  failed,  the  verdict  shall  be  for  the  defendant ;  and 
if  it  shall  appear  that  the  consideration  has  failed  in  part,  the 
plaintiff  shall  recover  according  to  the  equity  of  the  case: 
Provided,  that  nothing  in  this  section  contained  shall  be  con- 
strued to  affect  or  impair  the  right  of  any  bona  fide  assignee 

(?/)  21  111.  181. 

(v)  2  Scam.  25. 

{w)  86  III.  125.     See  94  111.  475. 

\x)  85  111.  264;  2  Bradvv.  461. 


ASSUMPSIT.  245 


Special  pleas — Want  of  consideration; 


of  any  instrument  made  assignable  by  this  act,  when  such 
assignment  was  made  before  such  instrument  became 
due."  0') 

IVo.   109.     Plea  of  want  of  consideration.      {To  declara- 
tion on  promissory  note,  with  common  counts.^ 

{First  -plea,  non  assumpsit,  as  ante,  No.  66;  second -plea 
as  in  Ko.  70,  ante,  to  the  asterisk,  and  then  -proceed:)  that 
the  several  supposed  causes  of  action  in  the  said  declara- 
tion mentioned  are  one  and  the  same,  to  wit,  the  supposed 
cause  of  action  in  the  said  first  count  .mentioned,  and  not 
different  causes  of  action ;  and  that  the  supposed  promio 
sory  note  in  that  count  mentioned  (*)  was  {here  set  forth 
the  facts  attending  the  making  of  the  note,  and  which  show 
that  it  was  without  consideration — as  that  it  was  given  for 
past  forbearance,  or  for  natural  affection,  etc. — and  con- 
clude thus:)  And  so  the  defendant  says,  that  the  said  sup- 
posed promissory  note  (*)  was  made  without  any  good  or 
valuable  consideration.  And  this,  etc.  {^verification  as  in 
No.  70,  ante.) 

If  the  note  or  other  writing  was  given  without  any  pre- 
tense or  show  of  consideration,  omit  all  between  the  aster- 
isks in  this  form,  (at) 

The  burden  of  proof,  under  this  plea,  is  on  the  de- 
fendant, {y) 

The  want  of  sufficient  or  legal  consideration  for  the  con- 
tract, or  illegality  in  the  contract  itself,  may,  it  is  said,  be 
given  in  evidence  under  the  general  issue,  in  assumpsit, 
though  it  must  be  pleaded  in  debt  on  a  specialt}^  or  in  cov- 
enant ;  iz)  but  it  would  seem  that  in  Illinois  and  Indiana  a 
want  of  consideration  must  be  specially  pleaded  in  an  ac- 
tion on  a  promissory  note,  {a) 

A  note  given  for  past  forbearance  of  a  debt  is  withe ut 


{y)  2  Starr  &  Curtis'  An.  Stat.  l66l ;  Rev.  Stat.  (1877)  6Sl.  See  117  111.  404; 
17  Bradw.  318.  549,  564. 

(j:)  See  Beecher's  Breese,  47,  note  2;  97  111.  640  ;  lo2  Til.  84. 

{y)  I  Scam.  207;  107  111.  33;  108  111.  602  ;  13  Bradw.  444;  20  Bra<Kv. 
243 

(:)   I  Chit.  PI.  417,  421,  425,  42S. 

(a)  See  i  Scam.  207,  310;  2  Blackf.  1S3  ;  71  111.  579;  95  111.  99;  78  111. 
481 ;  104  111.  257  ;  107  111.  404. 


246  ASSUMPSIT. 

Special  pleas — Total  failure  of  consideration. 

consideration  ;  (^)  and  natural  affection  is  not  a  valid  con- 
sideration for  a  iiote,  or  other  executory  contract,  (c) 

It  is  a  good  plea,  to  an  action  on  a  promissory  note,  that 
the  consideration  was  a  lease  which  was  null  and  void,  (d) 

Where  A.'s  house  was  burned  by  accident,  and  the  fire 
extended,  and  burned  the  house  of  B.,  and  the  latter,  by 
falsely  representing  that  he  could  prove  the  fire  to  have 
been  caused  by  the  negligence  or  misconduct  of  A.,  induced 
him  to  give  his  promissory  note  for  a  part  of  the  amount  of 
the  loss,  the  note  was  held  to  have  been  given  without  con- 
sideration, (e) 

A  quit-claim  deed  is  a  sufficient  consideration  for  a  prom- 
issory note.  (_/") 


JVo.  no.  Pica  oj  total  failure  of  consideration — breach 
of  warranty.  (  To  declaration  on  -promissory  note,  with 
common  counts.) 

[First  plea,  non  assumpsit,  as  ante,  IVo.  66  ;  second  plea 
as  in  No.  70,  ante,  to  the  asterisk,  and  then  proceed:^  that 
the  several  supposed  causes  of  action  in  the  said  declara- 
tion mentioned  are  one  and  the  same,  to  wit,  the  supposed 
cause  of  action  in  the  said  first  count  mentioned,  and  not 
different  causes  of  action  ;  and  that  on,  etc.,  aforesaid,  the 
plaintiff"  there  sold  to  the  defendant  a  certain  boiler,  at  the 

price  of dollars,  and  warranted  the  said  boiler  to  be 

then  sound,  and  fit  for  the  purpose  of  driving  the  machinery 
of  a  certain  mill  of  the  defendant ;  and  that  thereupon  the 
defendant,  upon  the  sole  consideration  of  the  said  sale  and 
warranty  of  the  said  boiler  as  aforesaid,  then  and  there 

paid  to  the  plaintiff'  the  sum  of dollars,  parcel  of  the 

price  aforesaid,  and  made  and  delivered  to  him  the  prom- 
issory note  in  the  said  first  count  mentioned,  to  secure  the 
payment  of  the  residue  of  the  said  price  ;  and  that  the  said 
boiler,  at  the  time  of  the  said  sale  and  warranty  thereof  as 

(*)  39  in.  539  ;  74  "l  58;  75  M.  366;  109  Til.  iSo. 

(c)  43  111.  207  ;  13  Bradw.  280. 

{d)   2  Scam.  187  ;  104  111.  257;  14  Bradw.  233. 

(<f)  50  111.  226. 

(/j  17  111.  531 ;  44  111.  68. 


ASSUMPSIT.  247 


Special  pleas — Total  failure  of  consideration. 


aforesaid,  was  not  sound,  and  fit  for  the  purpose  of  driving 
the  machinery  of  the  said  mill,  but  on  the  contrary  thereof 
was  then  unsound,  and  untit  for  that  purpose,  whereby  the 
said  boiler  became  and  was  of  no  use  or  value  to  the  de- 
fendant ;  and  that  by  reason  of  the  unsoundness  and  unjit- 
ness  of  the  said  boiler^  as  aforesaid^  the  same  afterivards^ 
to  wit,  on,  etc.,  there  burst,  and  was  thereby  destroyed: 
And  so  the  defendant  says,  that  the  consideration  upon 
which  the  said  note  was  made  has  wholly  failed.  And 
this,  etc.  {conclude  with  a  verification,  as  in  No.  70,  ante.y 

JVo.  III.  Plea  of  total  failure  of  consideration — breach 
of  warranty  oj  a  horse.  {To  declaration  on  promissory 
note^  with  comfnon  counts.^ 

First  plea,  rvoxi  assumpsit,  as  ante,  JVo.  66  ;  second  pica  as 
in  IVo.  70,  ante,  to  the  asterisk,  and  then  proceed:)  that  the 
several  supposed  causes  of  action  in  the  said  declaration 
mentioned  are  one  and  the  same,  to  wit,  the  supposed  cause 
of  action  in  the  said  first  count  mentioned,  and  not  different 
causes  of  action ;  and  that  on,  etc.,  aforesaid,  the  plaintiff 
there  sold  to  the  defendant  a  certain  horse,  at  the  price  of 

dollars,  and  warranted  the  said  horse  to  be  then  sound  ; 

and  that  thereupon  the  defendant,  upon  the  sole  considera- 
tion of  the  said  sale  and  warranty  of  the  said  horse  as  afore- 
said, then  and  there  made  and  delivered  to  the  plaintiff  the 
promissory  note  in  the  said  first  count  mentioned,  to  secure 

the  payment  of  the  said  sum  of dollars  ;  and  that  the 

said  horse,  at  the  time  of  the  said  sale  and  warranty  thereof 
as  aforesaid,  was  not  sound,  but  on  the  contrary  thereof 
was  then  unsound,  (*)  and  affected  with  disease,  whereby 
the  said  horse  became  and  was  of  no  use  or  value  to  the 
defendant,  and  of  the  same  disease  afterwards  died:  And 
so  the  defendant  says,  that  the  consideration  upon  which 
the  said  note  was  made  has  wholly  failed.  And  this,  etc. 
{^conclude  with  a  verification,  as  in  JVo.  70,  ante.) 

The  plaintiff  may  reply  that  the  horse  was  sound,  ana 
free  from  disease,  or  deny  the  warrant3^ 

The  plea  of  failure  of  consideration,  setting  up  a  breach 
of  a  warranty  of  soundness,  should  state  the  breach  co- 
extensively  with  the  contract  of  warranty.     It  must  nega- 


248  ASSUMPSIT. 


Special  pleas — Total  failure  of  consideration — Sale  of  land. 

tive  the  words  of  the  contract.  The  particular  unsound- 
ness need  not  be  stated,  (g-) 

A  plea  of  failure  of  consideration  to  an  action  upon  a 
note  should  state  particularly  in  what  the  failure  consisted. 
General  allegations  are  not  sufficient.  (//) 

In  pleading  a  total  failure  of  consideration,  the  plea 
should  set  forth  every  distinct  element  entering  into  the 
consideration,  and  then  as  distinctly  aver  a  failure  of  each 
and  all  the  parts  of  it.  (/) 

A  partial  failure  of  consideration  can  not  be  given  in  evi- 
dence under  the  general  issue  and  a  notice  of  set-off",  (j) 
or  under  a  notice  or  plea  of  total  failure  of  considera- 
tion, (k) 

Mere  inadequacy  of  consideration  is  no  ground  for  im- 
peaching a  contract.  (/) 

Verbal  evidence  may  be  received  to  impeach  the  consid- 
eration of  a  note,  but  not  to  vary  its  terms,  {m) 

A  general  plea  of  failure  of  consideration  is  bad.  («) 

JVo.  112.  Plea  of  total  failure  of  conside7'ation — to  ac- 
tion by  assignee  of  -promissory  note  given  on  -purchase 
of  real  estate.      [Count  on  note  and  common  counts.^ 

{First  plea,  non  assumpsit,  as  ante,  A^o.  66;  second 
plea  as  in  No.  70,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  several  supposed  causes  of  action  in  the  said  dec- 
laration mentioned  are  one  and  the  same,  to  wit,  the  sup- 
posed cause  of  action  in  the  said  first  count  mentioned,  and 
not  different  causes  of  aqtion  ;  and  that  the  promissory  note 
in  that  count  mentioned  was  assigned  to  the  plaintifT  after 

(^)  12  Ind.  463 ;  2  Saund.  PI.  &  Ev.  I2,  26 ;  3  Term,  307 ;  3  Saund.  4S1, 
b ;  I  Chit.  PI.  291 ;  9  Co.  60,  b. 

(//)  Breese,  17,  23,  47,  133,  302;  22  111.  522;  15  111.  82;  15  Ala.  141;  i? 
Texas.  627 ;  64  111.  26,  366;  82  111.  585. 

{i)  15  111.  182;  83  111.  232;  97  111.  640. 

(  ;■)   2  Scam.  505  \  97  111.  640. 

(/f)   2  Scam.  505  ;  Breese,  302  ;  9  Ind.  230;  32  III.  16S ;  54  111.  419. 

(/)   2  Ind.  442  ;  7  Ind.  232  ;  4  Blackf.  135. 

(w)   12  111.  287  ;  68  111.  604;  94  111.  475' 

(«)   2  Carter  (Ind.),  579. 


ASSUMPSIT.  249 


Special  pleas — Total  failure  of  consideration — Sale  of  land. 

the  same  became  due  ;  and  that  the  consideration  upon 
which  the  said  note  was  made  has  wholly  failed.  And  the 
defendant  further  in  fact  says,  that  before  the  making  of 
the  said  note,  to  wit,  on,  etc.,  aforesaid,  the  said  E.  F. 
{the payee)  there  agreed  with  the  defendant  to  sell  to  him, 

at  the  price  of  dollars,  and  to  convey  to  him  in  fee 

simple,  by  deed  with  covenants  of  warranty,  a  certain 
parcel  of  land,  to  wit,  {here  describe  the  land;)  and  there- 
upon the  said  E.  F.,  on  the  da}^  aforesaid,  there  made  and 
delivered  to  the  defendant  a  deed  purporting  to  be  a  deed 
of  conveyance  of  the  said  parcel  of  land,  in  fee  simple, 
(which  said  deed,  bearing  date  the  day  aforesaid,  is  now 
to  the  court  here  shown,)  and  thereby  covenanted  with  the 
defendant,  amongst  other  things,  that  (here  set  out  such  of 
the  covenants  as  may  be  desired,  for  example  as  follows — ) 
he  the  said  E.  F.  was  then  well  seised  of  the  said  parcel  of 
land,  as  of  a  good,  sure,  perfect,  absolute  and  indefeasible 
estate  of  inheritance  in  the  law,  in  fee  simple,  and  then 
had  good  right,  full  power  and  lawful  authority  to  grant, 
bargain,  sell  and  convey  the  same  in  fee  simple,  as  afore- 
said ;  as  by  the  said  deed,  reference  being  thereto  had,  will 
more  fully  appear ;  and  thereupon  the  defendant,  to  secure 
the  payment  of  a  part  of  the  said  price,  and  upon  the  sole 
consideration  of  the  sale  and  conveyance  so  agreed  and 
purported  to  be  made  of  the  said  parcel  of  land  as  afore- 
said, and  of  the  said  covenants  in  the  said  deed  contained, 
then  and  there  made  and  delivered  the  said  note  to  the  said 
E.  F.  :  And  the  defendant  further  says,  that  at  the  time  of 
the  making  and  delivery  of  the  said  deed  the  said  E.  F.  w^as 
not  well  seised  of  the  said  parcel  of  land,  as  of  a  good, 
sure,  perfect,  absolute  and  indefeasible  estate  of  inheritance 
in  the  law,  in  fee  simple,  nor  had  he  then  good  right,  full 
power  and  lawful  authority  to  grant,  bargain,  sell  and  con- 
vey the  same  as  aforesaid,  but  on  the  contrary  thereof  the 
said  E.  F.  did  not  then  have,  nor  has  he  since  acquired, 
any  right  or  title  whatsoever  to  the  said  parcel  of  land,  or 
any  part  thereof;  by  means  whereof  {here  set  forth  an 
eviction,  under  paramount  title,  if  such  has  been  the  fact, 
or  allege  as  follozus — )  the  defendant  has  not  had,  nor  has, 
the  possession  or  enjoyment  of  the  said  parcel  of  land,  or 
any  part  thereof.  And  this,  etc.  [conclude  with  a  verifica- 
tion, as  in  JVo.  70,  ante.) 


250  ASSUMPSIT. 


Special  pleas — Total  failure  of  consideration — Sale  of  land — Observations. 

The  plaintiff  may  reply  that  the  note  was  not  indorsed 
after  maturity,  or  that  the  consideration  was  not  as  alleged 
in  the  plea,  or  that  the  title  to  the  land  has  not  failed.  .  If 
deemed  essential  to  put  in  issue  more  than  one  of  the  alle- 
gations of  the  plea,  the  plaintiff  may,  by  leave  of  the  court, 
reply  several  replications. 

To  a  plea  that  the  plaintiff  does  not  own  a  certain  title 
to  land,  and  consequently  can  not  conve}'^  it  as  agreed,  it 
seems  that  he  may  reply  that  he  owns  the  title  in  equity, 
and  can  control  it  for  the  benefit  of  the  purchaser,  (o) 

Where  the  consideration  of  a  note  is  an  agreement  to 
convey  lands,  and  at  the  time  fixed  for  the  conveyance  the 
vendor  has  no  title  to  the  lands,  and  consequently  can  not 
convey  them,  there  is  such  a  failure  of  consideration  as 
will  bar  a  recovery  on  the  note,  {p) 

The  title  to  the  land,  whatever  the  covenantor  professes 
to  have,  is  the  true  consideration  of  the  note  given  for  the 
purchase-money  thereof,  and  not  the  covenants  in  the 
deed,  (q) 

It  is  a  sufficient  defense  to  an  action  on  a  note,  to  show 
a  breach  of  a  covenant  of  warranty  in  a  deed  for  the  con- 
veyance of  lands,  for  the  price  of  which  the  note  was 
given,  (r)  But  a  purchaser  of  land,  receiving  a  deed  with 
covenants  of  title,  can  not  avoid  the  payment  of  promis- 
sory notes  given  for  the  purchase-money,  on  the  ground 
that  the  grantor  had  no  title,  if  the  possession  of  the  pur- 
chaser has  not  been  disturbed,  nor  the  paramount  title  as- 
serted. (5) 

Where  there  is  neither  fraud  nor  warranty  on  the  part  of 
the  vendor,  in  a  sale  of  land,  the  vendee  can  not  recover 

(o)  30  111.  328. 

(/)  2  Scam.  420,  444,  453;  4  Scam.  392;  11  111.  327;  37  111.  224.  See 
3  Scam.  72,  237;  5  Gilm.  273;   12  111.  451;  45  111.  246. 

(y)  2  Scam.  444;  3  Scam.  502;  4  Scam.  127,  393;  11  111.  329;  22  111.  127; 
14  Pick.  293;  8  Blackf.  142.  See  i  Scam.  499;  27  111.  179;  30  111.  32S;  34 
111.  494- 

ir)  15  111.  242. 

(5)  45  111.  246.     See  3,1  111.  107. 


ASSUMPSIT.  251 


Special  pleas — Partial  failure  of  consideration — Observations. 

the  purchase-money  paid,  although  there  may  be  a  total 
failure  of  title.  (/) 

In  an  action  on  a  note  given  on  a  purchase  of  land,  the 
defendant  may  recoup  an  amount  he  has  been  compelled  to 
pay  in  order  to  remove  an  incumbrance  on  the  land,  {u) 

For  cases  where  total  or  partial  failure  of  consideration 
was  pleaded — the  consideration  being  the  title  to  real  es- 
tate— see  the  cases  reported  in  4  Scam.  392,  561 ;  22  111. 
127  ;  27  111.  175  ;  34  111.  494;  and  45  111.  246. 

JVo.  113.      P/ea  of -partial  failtwe  of  consideration.     {To 
declaration  on  promissory  note,  with  common  counts.^ 

[First  plea,  non  assumpsit,  as  ante,  A^o.  66.)  And  for 
a  further  plea  in  this  behalf,  the  defendant  says  that  the 
plaintiff  ought  not  to  have  his  aforesaid  action  against  him, 

the  defendant,  except  as  to  the  sum  of dollars,  because 

he  says,  {^proceed  as  in  No.  iii,  ante,  to  the  asterisk,  and 
thence  as  follows :)  and  so  has  continued  from  thence  hith- 
erto, by  reason  whereof  the  said  horse  was  not  nor  is  of 

any  greater  value  than  the  said  sum  of dollars  :  And 

so  the  defendant  says,  that  the  consideration  upon  which 
the  said  note  was  made  has  failed  except  as  to  that  sum  of 
money.  And  this  the  defendant  is  ready  to  verify  ;  where- 
fore he  prays  judgment  if  the  plaintiff  ought  to  have  his 
aforesaid  action,  except  as  to  the  said  sum  of dollars. 

Under  a  plea  of  total  failure  of  the  consideration  of  a 
promissory  note,  a  partial  failure  can  not  be  given  in  evi- 
dence, {v) 

A  partial  failure  of  consideration  may  be  pleaded  to  a 
promissory  note  given  for  the  purchase  of  land,  {x) 

A  plea  which  commences  as  a  plea  of  partial  failure  of 
consideration,  (which  goes  only  to  a  part  of  the  action,) 

(J)  3  Scam.  334.     See  Breese,  227;  2  Scam.  31 ;  11  111.  229;  34  111.  494. 

(«)  27  111.  175. 

(v)   2  Scam.  505;  Breese,  234;  9  Ind.  230  ;  54  III.  419;  109  111.  46. 

(.r)  27  111.  175  ;  3  111.  295.  See  34  111.  494. 


252  ASSUMPSIT. 


Special  pleas — Illegality  of  contract,  gaming — Observations. 

and  concludes  as  a  plea  of  fraud,  (which  is  a  defense  to 
the  whole  acdon,)  is  bad.  {y) 

See  further,  as  to   consideration,   and  want  or  failure 
thereof^  the  additional  Illinois  cases  noted  below,  (z) 


No.    114.     Plea  that  ■promises  ive7'e  for  vioney  won  by 

gaming. 

{First  -pica,  non  assumpsit,  as  ante,  JVo.  66 ;  second 
plea  as  in  JVo.  70,  ante,  to  the  asterisk,  and  then  proceed:) 
that  the  several  supposed  promises  in  the  said  declaration 
mentioned  were,  and  each  of  them  was,  made  upon  con- 
sideration of  money  won  by  the  plaintiff  from  the  defend- 
ant by  gaming,  to  wit,  by  playing  at  certain  games  with 
cards  ;  wherefore,  by  force  of  the  statute,  etc.,  the  said  sup- 
posed promises  were  and  are  wholly  void  :  And  this,  etc. 
{con chide  with  a  verificatio7i^  as  in  JVo.  70,  ante.) 

(The  plaintiff  may  reply  that  the  promises  were  maae 
upon  good  and  lawful  consideration,  and  not  upon  the  sup- 
posed unlawful  consideration  mentioned  in  the  plea.  See 
the  replication  to  the  plea  of  usury.  No.  89,  ante.) 

By  the  statute  of  Illinois,  all  promises,  notes,  etc.,  for 
the  payment  of  money  or  property  won  at  play  are  void 
absolutely;  and  no  assignment  of  any  such  note,  etc.,  af- 
fects the  defense  of  the  person  who  has  given  the  same,  [a) 

A  plea  which  alleges  a  contract  to  be  illegal,  must  show 
in  what  respect  it  is  so.  {b) 

Illegality  in  the  contract  itself — as  gaming,  etc. — may,  it 
seems,  be  given  in  evidence  under  the  general  issue  in  as- 

{y)  Breese,  302. 

{z)  Breese,  151;  i  Scam.  103,  207;  3  Scam.  329,  388,  585,  613;  4  Scam. 
548;  sGilm.  196;  14  111.  55;  15  111.  56;  17111.179,531;  [8  111.  204;  21  111. 
190,  223;  26  111.  328;  27  111.  160,  163,  202,  226;  29  111.  10:,  104;  31  111.  166; 
33  111.  244;  35  111.  481 ;  37  111-  253 ;  47  HI-  79;  5°  HI-  3o8;  51  HI.  234;  52  111. 

{a)  I  Starr  &  Curtis'  An  Slat.  792;  Rev.  Stat.  (1877)  3^8;  75  HI-  554;  9° 
111.  421;  ()\  111.  154;  3  Scam.  290;  3  Gilm.  282. 

(6)  3  Greene,  (Iowa,)  320;  102  111.  84, 


ASSUMPSIT.  253 


Special  pleas — Discharge  in  bankruptcy — Observations. 

siimpsit,  or  debt  on  simple  contract,  but  in  actions  on 
specialties  it  must  be  pleaded,  (c) 

On  the  subject  of  gaming  contracts,  the  additional  Illi- 
nois cases  given  in  the  note  may  be  consulted,  (d) 

See  the  observations  under  the  precedents  of  pleas  of 
payment,  accord  and  satisfaction,  etc.,  ante,  in  regard  to 
adapting  the  olea  to  the  different  forms  of  action. 

A^<?.  1 15'     J-'lea  of  discharge  in  bankruptcy . 

{First  plea,  non  assumpsit,  as  ante,  JVo.  66  ;  second  pica 
as  in  Ao.  70,  ante,  to  the  asterisk,  and  then  proceed:)  that 
after  the  making  of  the  several  supposed  promises  in  the 
said  declaration  mentioned,  and  before  the  commencement 
of  this  suit,  to  wit,  on,  etc.,  the  District  Court  of  the  United 

States  of  America  for  the District  of granted  to  the 

defendant  a  certain  discharge,  in  these  words  and  figures, 
to  wit :  [Here  set  forth  the  discharge,  in  hsec  verba.)  And 
the  defendant  further  says,  that  the  several  supposed  causes 
of  action  in  the  said  declaration  mentioned  are  in  respect 
of  debts  and  claims,  and  each  of  them  is  in  respect  of  a 
debt  and  claim,  by  the  said  act  of  Congress  made  provable 
against  the  estate  of  the  defendant,  and  which  existed  on 

the  said  day  of  ;  and  that  the  said  supposed 

causes  of  action  are  not,  nor  are  any  nor  is  any  one  of 
them,  in  respect  of  any  such  debts  or  debt  as  are  or  is  by 
the  said  act  excepted  from  the  operation  of  a  discharge  in 
bankruptcy.  And  this,  etc.  {conclude  with  a  verification^ 
as  in  No.  70,  ante.) 

(In  debt  on  simple  contract,  the  word  contracts  may  be 
substituted  iox  promises ;  and  in  actions  on  specialties  say 
"the  writing,"  or  "the  supposed  writing  obligatory,"  in- 
stead of  "the  several  supposed  promises.") 

The  bankrupt  law  provides,  that  a  discharge  in  bank- 
ruptcy may  be  pleaded  by  a  simple  averment  that  on  the 
day  of  its  date  such  discharge  was  granted  to  the  bankrupt, 

(c)  I  Chit.  PI.  417,  421,  425.  See  27  111.  320. 

(^)  I  Scam.  577;  3  Scam.  255,  529;  20 111.  215;  21  111.  244;  23111.70,493. 
26  111.  404;  27  111.  320;  33  111.  349:  36  111.  201 ;  51  111.  1S4,  473. 


254  ASSUMPSIT. 


Special  pleas — Discharge  in  bankruptcy^Observations. 

setting  the  same  forth  in  hcec  verba;  and  the  certificate 
shall  be  conclusive  evidence,  in  favor  of  such  bankrupt,  of 
the  fact  and  the  regularity  of  such  discharge,  (e) 

It  was  not  intended  by  any  of  the  provisions  of  the  bank- 
rupt law  that  the  bankrupt  court  should  pass,  in  a  plenary 
manner,  upon  the  question  whether  a  particular  claim  will 
or  will  not  be  released  by  a  discharge.  That  inquiry  is 
one  properly  to  be  made  only  by  the  court  in  which  a 
direct  suit  on  the  debt  is  pending.  When  the  discharge  is 
pleaded,  the  question  of  the  extent  of  its  operation  upon 
the  debts  of  the  bankrupt,  and  whether  a  pardcular  debt  is 
or  is  not  discharged  by  it,  comes  up  for  determination  by 
the  court  in  which  it  is  pleaded,  and  the  determination  will 
be  a  binding  judgment  between  the  parties.  {/) 

A  discharge  duly  granted,  when  pleaded  in  bar  to  the 
further  maintenance  of  an  action  for  a  prior  debt,  can  not 
be  impeached  in  a  state  court  for  any  cause  which  would 
have  prevented  the  granting  of  it  under  section  29,  or  would 
have  been  sufficient  ground  for  annulling  it  under  section 
34  of  the  bankrupt-law.  {^g) 

Section  33  of  the  bankrupt-law  provides,  "  that  no  debt 
created  by  the  fraud  or  embezzlement  of  the  bankrupt,  or 
by  his  defalcation  as  a  public  officer,  or  while  acting  in 
any  fiduciary  character,    shall  be   discharged  under  this 

act."(/^) 

No  debt  contracted  by  fraud  can  be  discharged,  even 
though  the  debt  is  merged  in  a  judgment.  (/)  Where  the 
record  of  the  action  shows  a  material  and  traversable  alle- 
gation of  fraud  as  its  sole  foundation,  the  debt  or  demand 
may  fairly  be  said  to  be  one  founded  in  fraud,  and  is  not 
merged  by  a  judgment  thereon,  {j) 


{e)  Sec.  34.  Bankrupt  Law  of  1867.     See  103  111.  588. 

(/•)  Bump's  L.  &  Pr.  of  B.  395  ;   2  B.  R.  57,  74,  81  ;  36  How.  Pr.  R.  167. 

(/)   19  111.  134;  29  111.  165  ;  Bump's  L.  &  Pr.  of  B.  396  ;  2  A.  L.  J.  191. 

(/^)  Bump's  L.  &  Pr.  of  B.  391  ;  11  Bradw.  549. 

(i)   I  B.  R.  165.     See  no  111.  372 ;  90  111.  82. 

{j)   Bump's  L.  &  Pr.  of  B.  392  ;  4  B.  R.    15. 


ASSUMPSIT.  255 


Special  pleas — Observations. 


A  claim  is  not  discharged  which  is  founded  on  a  deceit 
by  means  of  false  and  fraudulent  representations  and  in- 
ducements whereby  the  bankrupt  procured  from  the  plaint- 
iff an  assignment  of  a  complete  stock  in  trade,  including 
goods,  choses  in  action,  etc.,  in  exchange  for  a  note  of 
much  less  value  than  was  represented,  if  not  wholly  worth- 
less, (/t-) 

The  act,  from  its  language,  seems  to  have  been  intentionally 
made  so  broad  as  to  include  a  debt  created  by  a  defalcation 
of  the  bankrupt  while  acting  in  any  fiduciary  capacity  what- 
ever, and  not  to  be  confined  to  any  special  fiduciary  capacity,  (l) 
A  claim  against  a  person  for  withholding  the  proceeds  arising 
from  the  sale  of  goods  consigned  to  him  to  be  sold  on  com- 
mission, is  a  debt  contracted  by  him  in  a  fiduciary  capac- 
ity, (m) 

No.    116.     P/ca  of  illegal  consideration — Gambling  in  grain. 

{^Commence  as  in  No.  70,  ante,  page  775,  to  the  (*)  ana  then 
proceed :^  that  the  several  supposed  causes  of  action  in  the 
said  declaration  mentioned  are  one  and  the  same,  to-vvit,  the 
supposed  cause  of  action  in  the  first  count  mentioned,  and  not 
different  causes  of  action  ;  that  the  sole  and  only  considera- 
tion upon  which  the  said  promissory  note  in  the  said  count 
mentioned  was  executed,  was  for  money  won  by  the  plaintiff 
from  the  defendant  in  speculating  on  the  market  price  of 
grain,  to-wit,  by  buying  and  selling  deals  and  options  in  grain  ; 
that  in  each  and  all  of  said  deals  and  options  it  was  under- 
stood and  intended  by  both  the  plaintiff  and  defendant,  that 
neither  party  was  to  receive  or  deliver  the  grain  so  bought  or 
sold  ;  and  that  the  loss  or  gain  resulting  from  such  transac- 
tions should  be  settled  by  the  payment  or  receipt  of  the  differ- 
ence between  the  price  agreed  upon  and  the  market  value  of 
the  same  at  the  time  appointed  for  the  delivery  thereof 
Wherefore,  by  force  of  the  statute  in  such  case  provided,  the 
said  promissory  note  is  wholly  void;  wherefore,  the  defend- 
ant prays  judgment,  etc. 

{k)  Bump,  392;  2  B.  R.  II;  I  L.  T.  B.  90. 

(/)  B.  R.  Sup.  7;  S.  C.  I  Bt.  348;  Bump,  392.' 

(w)   Id.;  2  B.  R.  74,  114;  S.  C.  2  Bt.  554;  S.  C.  6  Blatcli.  292. 


256  ASSUMPSIT. 


Pleas,  etc.,  denyiag  execution  of  written  contrcicts. 


The  intent  of  the  statute  is  to  prohibit  all  dealings  in 
options,  in  grain  or  other  commodities.  The  statute  should 
be  justlv  and  fairly  construed  to  enable  it  to  accomplish  this 
end,  and  not  to  defeat  it.  (/) 

Picas,  etc.,  denying  execution  of  written  contracts. — 
The  33rd  section  of  the  Illinois  practice-act  provides,  that 
"  no  person  shall  be  permitted  to  deny,  on  trial,  the  execu- 
tion or  assignment  of  any  instrument  in  writing,  whether 
sealed  or  not,  upon  which  any  action  may  have  been 
brought,  or  which  shall  be  pleaded  or  set  up  by  way  of 
defense  or  set-off,  or  is  admissible  under  the  pleadings 
when  a  copy  is  filed,  unless  the  person  so  denying  the 
same  shall,  if  defendant,  verify  his  plea  by  affidavit;  and 
if  plaintifl^  shall  file  his  affidavit  denying  the  execution  or 
assignment  of  such  instrument :  provided,  if  the  party 
making  such  denial  be  not  the  party  alleged  to  have  exe- 
cuted or  assigned  such  instrument,  the  denial  may  be  made 
on  the  information  and  belief  of  such  party."  {q) 

In  assumpsit,  when  the  execution  of  the  instrument  sued 
on  is  sought  to  be  put  in  issue,  the  proper  plea  is  non  as- 
5?(';;;/j/V,  verified  by  affidavit ;  (r)  and  in  debt  on  a  specialty, 
and  covenant,  the  proper  plea  is  non  est  factum,  verified 
in  like  manner.  (5)     In  debt  on  simple  contract  in  writing, 

(/)  113  111.  228;  19  Brailw.  334;  20  Biadw.  76,  528;  no  111.  173;  17 
r>iad\v.  475;  79  111.  328;  83  111.  33;  4  Bradvv.  594;  7  Bradw.  560;  8  Bradw- 
493.  549;  4  Bradw.  594;  105  111.  49  ;  95  111.  99;  107  111.  141;  102  111.  523. 

{q)  2  Starr  &  Curtis'  An.  Slat.  1797;  Rev.  Stat.  (1877)  738. 

(;•)  13  Bradw.  385;  87  111.  49;  105  U.  S,  416  ;  3  Scam.  187;  16  111,  269.  See 
2  Scam.  263;  21  111.  129;  48  III.  138. 

(j-)   I  Scam.  3^9;  3  Scam.  433;  92  111.  549;  96  111.  430. 


ASSUMPSIT.  257 


Special  pleas — Denying  execution  of  instrument — Observations. 

the  following  form  may  be  used,  and  it  will  answer  in  any 
action  at  law  on  a  written  instrument. 

1^0.  117.     Plea  denying  execution  of  instrument. 

{As  in  No.  70,  ante,  to  the  asterisk,  and  then  -proceed:^ 
that  he  did  not  make  and  deliver  the  writing  in  the  said 
declaration  mentioned,  in  manner  and  form  as  the  plaintiff 
has  above  in  that  behalf  alleged  :  And  of  this  the  defend- 
ant puts  himself  upon  the  country,  etc. 

In  the Court. 

C.  D.  ^ 

at  s .     >  Assumpsit. 
A.  B.  3      The  said  C.  D.,  deienaant,  makes  oath  and 
says,  (*)  that  the  foregoing  plea  is  true  in  substance  and 
in  fact. 

C.  D. 
Subscribed  and  sworn,  etc. 

Wlitere  a  firm  name  is  improperly  used  for  the  private  pur- 
poses of  one  of  the  partners,  the  piT)per  practice  would  be  for 
the  other  to  file  a  plea  denying  the  execution  of  the  instru- 
ment, verified  by  affidavit,  (x) 

The  affidavit  must  be  made  by  the  person  pleading  the 
plea ;  and  if  it  is  pleaded  b}'  several  persons,  they  must  all 
verify  it.  If  verified  by  but  one,  the  plaintiff  has  to  prove 
his  case  as  to  that  one  only.  (/) 

If  the  person  denying  the  execution  or  assignment  oi  an 
instrument  is  not  the  person  alleged  to  have  made  or  as- 
signed the  same,  the  words  "  upon  his  iniormation  and 
belief"  are  to  be  inserted  in  the  aflidavit,  where  the  asterisk 
is  placed  in  the  above  form. 

Replications  and  rejoinders,  denying  the  execution  of 
written  contracts  pleaded  or  replied,  can  be  framed  from 
the  above  form  of  plea  ;  or  ?ion  est  factum  can  be  replied 
or  rejoined,  when  the  execution  of  a  specialty  is  to  be 
denied. 

(X)   78  111.  234.  See  17  111.  202;  18  111.  262;  71  111.  148;  88  U.  S.  105,;  9 
Br.idw.  174. 

(/)  2  Gilm.  715  ;  68  111.  165;  23  III.  340. 


258  ASSUMPSIT. 


Pleas  denying  joint  liability,  etc. 


See  the  additional  Illinois  cases  noted  below,  {u)  and 
those  noted  under  the  next  two  forms. 

Pleas  denying  joint  liability^  etc. — Section  35  of  the 
Illinois  practice-act  is  as  follows:  "In  actions  upon  con- 
tracts, express  or  implied,  against  two  or  more  defendants, 
as  partners  or  joint  obligors  or  payors,  zvhethcr  so  alleged 
or  not.,  proof  of  the  joint  liability  of  the  defendants,  or  theii 
christian  or  surnames,  shall  not  in  the  first  instance  be  re- 
quired, to  entitle  the  plaintiff  to  judgment,  unless  such 
proof  shall  be  rendered  necessary  by  pleading  in  abatement, 
or  unless  the  defendant  shall  file  a  plea  in  bar, denying  the 
partnership,  or  joint  liability,  or  the  execution  of  the  in- 
strument sued  on,  verified  by  affidavit."  (z')  This  differs, 
in  the  respects  indicated  by  the  words  in  italics,  from  the 
law  as  it  existed  before  July  ist,  1872. 

No,  118.     Plea  by  one  dejendant,  denying  joint  liability. 

[See  form  No.  70,  ante,  as  to  commencement — )  the  said 
E.  F.  says  that  the  plaintiff'  ought  not  to  have  his  aforesaid 
action  against  him  the  said  E.  F.,  because  he  says,  that  he 
is  not  nor  ever  was  jointly  liable  with  the  said  C.  D.  in 
respect  of  the  several  supposed  causes  of  action  in  the  said 
declaration  mentioned,  or  any  or  either  of  them,  in  manner 
and  form  as  the  plaintiff'  has  above  in  that  behalf  alleged  : 
And  of  this  he  the  said  E.  F.  puts  himself  upon  the  country, 
etc.      {Add  affidavit,  as  in  last  precedent.) 

No.  119.     Plea  denying  joint  liability. 

(^As  in  No.  70,  ante,  to  the  asterisk,  and  then  proceed :) 
that  they  are  not  nor  ever  were  jointly  liable  in  respect  of 
the  several  supposed  causes  of  action  in  the  said  declara- 
tion mentioned,  or  any  or  either  of  them,  in  manner  and 
form  as  the  plaintiff  has  above  in  that  behalf  alleged  :  And 
of  this  the  defendants  put  themselves  upon  the  country,  etc. 
{Add  affidavit,  as  in  Al?.  117, ante.; 

{ii)  I  Scam.  451  ;  2  Scam.  575;  3  Scam.  526;  15  III.  333,  339;  16  Til.  169; 
87  111.  49;  8  Bradw.  69;  105  U.  S.  416;   13  Bradw.  3S5. 

{v)  2  Starr  &  Curtis'  An.  Stat.  1800;  75X11.48;  2  Bradw.  386;  3  Bradw. 
324;  Rev.  Stat.  (1877)  738;  78  111.  234;  71  111.  148. 


ASSUMPSIT.  259 


Pleas  denying  joint  liability,  etc. — Nul  tiel  corporation. 

In  a  case  under  the  former  law,  the  court  said  that  where 
several  defendants,  sued  on  an  instrument  in  writing,  de- 
nied the  execution  of  the  instrument,  b}^  plea  verified  by- 
affidavit,  such  plea  also  put  in  issue  the  joint  liabilit}'  ;  but 
that  if  the  writing  was  not  denied,  or  the  action  was  not  on 
a  writing,  then  the  joint  liability  could  only  be  put  in  issue 
by  plea  in  abatement,  {w)  In  another  case,  however, 
which  was  an  action  on  a  promissory  note,  where  one  of 
the  defendants  pleaded  non  assujtipsif,  verified  by  affidavit, 
it  was  said  that  this  did  not  put  in  issue  the  joint  liabilit}^ 
which  could  only  be  done  by  plea  in  abatement ;  (.r)  and 
the  same  thing  was  said,  as  to  the  necessity  of  a  plea  in 
abatement,  in  another  case,  (which  was  not,  however,  an 
action  on  a  writing,)  where  non  assumpsit.,  verified  by  affi- 
davit, was  pleaded  by  one  of  two  defendants.  ( j) 

Where  several  persons  are  oued  as  joint  makers  of  a 
promissory  note,  the  production  of  a  note  signed  at  the  foot 
by  two  of  the  defendants,  the  name  ot  the  other  appearino- 
on  the  back,  W\\\, ;prima  facie,  support  the  declaration  ;  and 
in  the  absence  of  a  sworn  plea  by  the  party  whose  name 
appears  on  the  back,  he  can  not  deny  that  he  was  a  joint 
maker  of  the  note,  {z) 

See  the  observations,  (especially  as  to  the  affidavit,)  and 
the  cases  noted,  under  the  head  of  "Pleas,  etc.,  denying 
execution  of  written  instruments,"  a7ite,  and  the  additional 
cases  noted  below;  {a)  also  the  remarks  under  the  head 
of  Pleas  in  Abatement,  ante. 

JVo.  120.     Pica  ^nul  tiel  corporation. 

(^As  in  No.  70,  ante,  to  the  asterisk,  and  thence  as  fol- 
Iozus :)  that  there  is  not,  nor  was  at  the  time  of  the  com- 
mencement of  this  suit,  any  such  corporation  as  the 

{w)     12  111.  124;  78  111.  234. 
(*)  21  111.  524- 

(y)  28  111.  174. 
{z)  51  111.  435. 
(a)  13  111.  647;  18  III.  262;  28  111.  423;  37  111.  76;  43  111.  134;  52  111.  367. 


26o  ASSUMPSIT. 


Plea  of  nul  ttel  corporation — Observations. 


Company,  as  by  the  said  declaration  is  above  sup- 


posed :  And  of  this  the  defendant  puts  himself  upon  the 
country,  etc. 

The  plea  of  mil  tiel  corporation  appears  to  be  of  mod- 
ern introduction.  It  is  not  to  be  found  in  the  older  books 
on  pleading,  though  now  in  common  use.  Formerly  it  was 
held,  that  where  a  private  corporation  sued,  either  on  a 
contract  or  to  recover  real  property,  it  must  at  the  trial, 
under  the  general  issue,  show  that  it  was  a  corporation,  or 
be  nonsuited ;  but  the  rule  now  prevails  that  in  a  suit 
brought  by  a  corporation,  the  defendant,  by  pleading  the 
general  issue,  admits  the  capacity  of  the  plaintiff  to  sue. 
If  he  would  deny  the  existence  of  the  corporation,  he  must 
put  in  a  plea  for  that  purpose,  {b) 

Where  the  plaintiff'  sues  as  a  corporation,  no  further 
allegation  that  it  is  such  is  necessary,  {c)  But  where  a 
chartered  company  seeks  to  enforce  rights  which  do  not 
ordinarily  and  necessarily  belong  to  such  corporations,  it 
must  set  forth  and  prove  its  authority  for  so  doing,  [d) 

A  plea  of  nul  tiel  corporation  is  a  plea  in  bar,  and  m.ay 
be  interposed  with  other  pleas.  Where  a  corporation  sues 
by  a  wrong  name,  the  defendant  can  only  take  advantage 
of  it  by  a  plea  in  abatement ;  but  where  there  there  is  no 
misnomer,  he  can  only  plead  mil  tiel  corporation  in 
bar.   (^) 

In  an  action  of  replevin,  where  the  defendant  justified 
the  taking  of  the  property  as  collector  of  taxes  for  a  mu- 
nicipal corporation,  and  the  plaintiff  replied  that  there  was 
no  such  corporation  as  that  for  which  the  defendant  claimed 

{h)  5  Gilm.  48;  21  111.  277;  30  111.  151;  16  Conn.  421;  9  Ala.  113;  7 
Mon.  5S4;  6  N.  H.  197;  3  Pick.  245;  4  Blackf.  202;  2  Wms.  (Vt.)  93;  4 
Peters,  4S0.    /  \S\  tl}u>  3^  3^ 

(c)  5  Gilm.  332  ;  4  Blackf.  267.     See  5  Gilm.  48.     ^l,  (  2JUb»   ^^  C 

(<f )  5  Gilm.  332. 

(e)  30  111.  151 ;  27  111.  414;  I  Saund.  340;  4  Peters,  501 ;  12  Barb.  573;  5 
Watts  &  Serg.  215;  3  Kernan,  313;  33  Penn.  364;  3  Clarke,  (Iowa,)  419, 
433.     See  37  111.  465;  103  111.  224;  113  111.  618. 


ASSUMPSIT.  261 


Pleas  puis  darrein  continuance. 


to  be  collector  of  taxes,  the  replication  was  held  bad,  be- 
cause the  question  whether  or  not  such  town  had  ever  been 
incorporated  or  had  forfeited  its  franchises,  could  not  be 
tried  in  such  collateral  proceeding.  {_/") 

A  plea  denying  that  the  plaintiff  is  a  corporation  is  over- 
come by  proof  that  the  defendant  sold  land  to  the  plaintiff, 
and  made  and  delivered  to  it  a  deed  of  conveyance,  thus 
recognizing  the  plaintiff"  as  a  corporation,  {g^ 

Where  certain  persons,  composing  an  association  under 
a  name  which  imports  a  corporate  existence,  exercise  cor- 
porate powers  by  that  name,  they  should  not  be  heard  to 
deny  that  there  is  any  such  corporation,  [h^ 

Picas  ^^  since  the  last  continuance."" — The  following  form 
of  a  plea  of  this  kind  is  given  in  Chitty  on  Pleading,  vol. 
3,  page  1238. 

{Title  of  court,  etc.)     And  now  at  this  day,  that  is  to 

say,  on next  after ,  in  this  same  term,  until  which 

day  the  plea  aforesaid  was  last  continued,  comes  the  said 

A.  B.,  by ,  his  attorney,  and  the  said  C.  D.,  by  his 

attorney  aforesaid ;  and  the  said  C.  D.  saith  that  the  said 
A.  B.  ought  not  further  to  have  or  maintain  his  aforesaid 
action  thereof  against  him,  because  he  saith,  that  after  the 

last  continuance  of  this  cause,  that  is  to   say,  after 

next  after  ,  in  this  same  term,  from  which  day  this 

cause  was  last  continued,  and  betore  this  da}'',  to  wit,  on, 
etc.,  at,  etc.,  he  the  said  A.  B.  {here  state  the  release,  .... 
or  olJier  stibject-mattcr  of  the  pica;)  and  this  he  the  said 
C.  D.  is  ready  to  verif\^ ;  wherefore  he  prays  judgment  if 
the  said  A.  B.  oug-ht  further  to  have  or  maintain  his  afore- 
said  action  thereof  against  him,  etc. 

It  is  to  be  observed,  that  formerly,  in  England,  du/ing 
the  whole  proceedings  in  a  suit,  from  the  time  ot  the 
defendant's    appearance    until  its  final  determination,  the 

(/)  S3  111.  176.  See  no  111.  235  ;  103  III.  224;  108  111.  617. 
(g\   48  111.  356;  91  III.  20;  49  111.  422;  64  111.  477. 

(/4)  34  111.  459;  17  Bradw.  622;  14  Ind.  90 ;  75  111.  113;  60  111.  244  ;  113 
111.  6i8. 


262  ASSUMPSIT. 


Special  pleas — Puis  darreht  continuance. 


cause  was  to  be  contiiiticd,  (or,  as  it  was  sometimes  ex- 
pressed, the  -pai'tics  must  be  "continued"  in  court,)  from 
day  to  day,  or  from  time  to  time,  by  regular  entries,  to  be 
made  for  that  purpose. 

This  was  changed  by  the  rule  of  court  of  Hil.  T.  4  Will, 
IV,  which  provided  that  no  entry  of  continuances  (with  a 
single  exception  there  mentioned)  should  in  future  be 
made  ;  but  the  rule  contains  a  proviso  that  in  all  cases 
in  which  a  plea  fw's  darrein  continuance  was  then  plead- 
able, "the  same  defense  may  still  be  pleaded,  with  an  alle- 
gation that  the  matter  arose  after  the  last  pleading,  or  the 
issuing  of  the  jury  process,  as  the  case  may  be."  Under 
this  rule  the  following  form  of  plea,  denominated  a  '•'•■pica 
to  the  further  maintenance  of  the  action  "  is  given  in  Ste- 
phen on  Pleading,  page  64. 

[Title  of  court,  etc.)  The  said  defendant,  by  his  attor- 
ney, \_or,  in  person,]  says,  that  the  said  plaintiff  ought  not 
further  to  have  or  maintain  his  aforesaid  action  against 
him  ;  because,  he  says,  that  after  the  last  pleading  in  this 

cause,  that  is  to  sa}^,  on  the day  of  ,  in  the  year 

of  our  Lord  — — ,  the  said  plaintiff,  by  his  certain  deed  of 
release,  sealed  with   his  seal,    [the  release   may  be   here 

stated, ]     And  this  the  said  defendant  is  read}''  to 

verify.  Wherefore  he  prays  judgment  if  the  said  plaintiff 
ought  further  to  have  or  maintain  his  aforesaid  action 
against  him,  etc. 

It  is  submitted  that  the  following  form  is  suited  to  our 
mode  of  practice,  and  is  sufficient. 

No.  121.     Plea  puis  darrein  continuance. 

In  the Court. 

Term,  18— 


Asstimfsit. 

And   now  on  this  day  of  ,  in  this 

same  term,  comes  the  defendant,  by  his  attorney  aforesaid, 
and  says  that  the  plaintifi^'  ought  not  further  to  maintain  his 
aforesaid  action  against  him,   the  defendant,  because  he 


ASSUMPSIT.  263 


Special  pleas — Puis  darrein  continuance — Observations. 


says,  that  after  the  last  pleading  {or,  if  there  -were  any 
^proceedings  after  the  last  -pleadings  say  "after  the  last 

proceedings")   in  this  cause,  that  is  to  say,  after  the 

day  of ,  in  the term  last  past,  {or,  "in  this  same 

term,")  and  before  this  day,  to  wit,  on,  etc.,  {here  set  forth 
the  subject-matter  of  the  -plea,  as  a  release,  or  an  award, 
or  a  re-vocation  of  letters  of  administration ,  etc.^  And 
this  the  defendant  is  ready  to  verity ;  wherefore  he  prays 
judgment  if  the  plaintiff  ought  further  to  maintain  his 
aforesaid  action,  etc. 

A  plea  picis  darrein  continuance  must  show  some  matter 
of  defense  which  has  arisen  since  the  last  continuance — 
that  is,  since  the  last  stage  of  the  suit ;  and  it  is  said  that 
the  day  of  continuance,  and  the  time  and  place  when  and 
where  the  matter  of  defense  arose,  must  be  set  forth.  Great 
certainty  is  requisite  in  pleas  of  this  description,  {i) 

There  is  a  distinction  to  be  observed  between  a  plea  set- 
ting up  matter  of  defense  which  has  arisen  since  the  com- 
mencement of  the  action,  but  before  plea  pleaded,  and  one 
alleging  matter  of  defense  which  has  arisen  after  plea 
pleaded.  The  former  is  not,  properly  speaking,  a  plea 
puis  darrein  continuance.  {J)  It  is  said  that  "when 
matter  of  defense  has  arisen  after  the  commencement  of 
the  suit,  it  can  not  be  pleaded  in  bar  of  the  action  gener- 
ally, but  must,  when  it  has  arisen  before  plea  or  continu- 
ance, be  pleaded  as  to  the  further  maintenance  of  the  suit ; 
and  when  it  has  arisen  after  issue  joined,  puis  darrein  con- 
tinuance.^^ {k)  The  issue  joined  may  be  either  of  law  or 
of  fact.  (/)  Matter  of  defense  arising  after  plea  pleaded 
can  only  be  taken  advantage  of  by  a  plea  of  the  kind  last 
mentioned,  (m) 

(?)  2  Gilm.  252;  I  Chit.  PI.  572;  3  Gilm.  99;  5  Bradw.  490. 

U)  3  Gilm.  99;  74  111.  II;  13  Bradw.  352. 

(t)  I  Chit.  PI.  569;  40  Maine,  582;  5  Pet.  224;  20  Johns.  414;  7  Gill,  415; 
12  Gill  &  Johns.  361 ;  4  East,  502.     See  3  Gilm.  104. 

(1)  Gould's  PI.  346;  I  Chit.  PI.  569. 

{m)  10  Ohio,  300;  8  Clarke,  (Iowa,)  65  ;  4  Cal.  33I;  30  Ala.  253;  I  Hemp, 
16.     See  Steph.  PI.  64;  Gould's  PI.  345-348;  I  Chit.  PI.  569-573 


264  ASSUMPSIT. 


Special  pleas — Puis  darrein  co7dinuance — Observations. 

Pleas  fuis  darrein  continuance  may  be  either  in  abate- 
ment or  bar,  according  to  the  subject-matter;  and  if  any- 
thing happens,  pending  the  suit,  which  would  in  effect 
abate  it,  this  may  be  pleaded  -puis  darrein  continuance^ 
though  there  has  been  a  plea  in  bar.  iii)  A  plea  in  abate- 
ment, ot  this  kind,  begins  and  concludes  like  a  plea  in 
abatement  when  pleaded  in  the  first  instance,  io)  If  matter 
in  abatement  is  pleaded  fiiis  darrein  continuance^  the  judg- 
ment, if  against  the  defendant,  is  peremptory,  as  well  on 
demurrer  as  on  trial,  {f) 

A  plea^«?5  darrein  continuance  is  a  waiver  of  any  former 
plea  or  pleas.  (^) 

It  is  said  that  there  can  be  but  one  plea  of  this  kind  in 
one  and  the  same  cause,  (r) 

A  plea  of  release,  pleaded  -pttis  darrein  continuance^  after 
a  demurrer  and  joinder  in  demurrer,  operates  as  a  retraxit 
of  the  demurrer,  (s) 

Where  issue  is  taken  on  a  plea  of  payment  and  satisfac- 
tion, of  this  description,  evidence  of  a  settlement  of  ac- 
counts, and  payment  of  the  amount  found  due,  is  admissi- 
ble ;  so  is  an  order  from  the  plaintiff,  to  his  attorney  of 
record,  to  discontinue  the  suit,  {t) 

Regularly,  if  the  defendant  suffers  another  continuance 
to  intervene  before  he  pleads  the  new  matter — does  not 
plead  it  at  the  first  opportunity  after  the  happening  of  it — 
he  waives  it,  and  can  not  afterwards  plead  it.  {u)  But 
whether  or  not  a  plea  of  this  kind  shall  be  pleaded  after  a 
continuance   has  intervened,   is   in    the    discretion   of  the 


(»)  Gould's  PL  347;  1  Chit.  PI.  571. 
{6)  Gould's  PI.  347.     See  i  Chit.  PI.  572. 
\f)  1  Chit.  PI.  571 ;   I  Wheat.  215. 

(q)  1  Chit.  PI.  571 ;  Gould's  PI.  347;  13  Peters,  436;  i  TIemp.  16;  4  Wis. 
159;  14  Wend.  161. 
(r)  I  Chit.  PI.  572,  573 ;  Gould's  PI.  347. 
(s)  32  Eng.  Com.  Law  Eq.  2S0. 
(/)  6  Ohio,  534. 
Cm^  Gould's  PI.  346. 


ASSUMPSIT.  265 


Demurrers. 


court,  (v)  which  may  give  leave  to  plead  it  mine  ^ro  tunc; 
and  when  the  court  thus  exercises  its  discretion,  it  may  im- 
pose the  payment  of  costs,  (w) 

It  is  said  that  no  plea  ^uis  darrein  continuance  can  be 
pleaded  after  a  demurrer  determined,  or  verdict  found,  {x) 
though  it  may  after  the  jury  has  gone  from  the  bar.  (jy) 
But  in  a  case  in  Illinois,  where  the  defendant  was  sued  in 
an  action  of  debt  on  a  statute,  for  the  penalty,  and  after 
verdict  against  him,  but  before  judgment,  the  legislature 
passed  an  act  releasing  all  penalties  incurred  under  that 
statute,  (including  those  sued  for,)  it  was  held  that  this 
might  be  pleaded  ^iiis  darrein  continuance ;  (^')  and  in 
New  York  an  insolvent  has  been  allowed  to  plead  his  dis- 
charge even  after  verdict,  {a) 

Pleas  after  the  last  continuance  must  be  verified  by  affi- 
davit ;  {h)  but  it  is  held  in  Illinois  that  pleas  of  this  kind  in 
bar  need  not  be  so  verified,  {c) 


IV.    DEMURRERS. 

The  following  notes  and  observations  upon  the  subject 
of  demurrers  are  applicable  to  the  various  forms  of  action. 

If  the  defendant,  upon  examination  of  the  declaration,  is 
satisfied  that  it  is  not  sufficient  in  point  of  law  to  maintain 
the  action,  he  should  demur.  If  some  of  the  counts  are 
good  and  some  bad,  he  should  plead  to  the  good  counts, 
and  demur  to  the  bad  ones.  The  demurrer  will  present 
an  issue  in  law  upon  the  facts  stated  in  the  declaration  or 

(v)  40  Maine,  582;  10  Johns.  161;  19  Wend.  639;  4  S.  &  R  238;  li  N. 
H.  239. 

(w)  I  Chit.  PI.  571 ;   15  N.  H.  410. 

(»)  Gould's  PI.  347;   I  Chit.  Pi.  573. 

(j)  I  Chit.  Pi.  572. 

(z)  Breese,  154. 

(a)  9  Jolins.  392. 

(3)  I  Chit.  Pi.  572. 

(c)  2  Scam.  278.     See  2  Gilm.  252. 


266  .  ASSUMPSIT. 


Demurrers. 


counts,  and    this  issue    the   plaintiff  is   bound  to   accept,  or 
abandon  his  suit. 

Nature  of. — A  demurrer  is  an  allegation  that,  admitting  the 
facts  of  the  preceding  pleading  to  be  true  as  stated  by  the 
party  making  it,  he  has  yet  shown  no  cause  why  the  party 
demurring  should  be  compelled  by  the  court  to  proceed  fur- 
ther. It  is  a  declaration  that  the  party  demurring  will  go 
no  fiirtlier.,  because  the  other  has  shown  nothing  against  him. 
It  imports  that  the  objecting  party  will  not  proceed,  but  will 
waitthe  judgment  of  the  court  whether  he  is  bound  to  do  so.  {a) 

A  party  should  not  demur  unless  he  is  certain  that  his  own 
previous  pleading  is  substantially  correct,  for  it  is  an  estab- 
lished rule,  that  upon  the  argument  of  a  demurrer,  the  court 
will,  notwithstanding  the  defect  of  the  pleading  demurred  to. 
give  judgment  against  the  party  whose  pleading  was  first  de- 
fective in  substance,  (i)  But  where  the  general  issue  is  filed, 
a  demurrer  can  not  be  carried  back  to  the  declaration,   {c) 

A  party  can  not  demur  and  plead  at  the  same  time  to  the 
same  count  or  plea,  {d)  A  demurrer  may  be  to  the  whole  or 
a  part  of  the  pleading ;  but  if  to  the  whole,  and  a  part  be 
good,  it  will  be  overruled,  {e) 

Effect  of  demurrer. — A  demurrer  admits  all  such  matters 
of  factasare  well  pleaded;  (/)  but  not  the  arguments  or  legal 
conclusions  in  the  pleading,   ^g) 

Where  a  demurrer  is  overruled  to  any  pleading  its  suf- 
ficiency is  established.   {Ji) 

[a)  1  Bouv.  L.  D.  507. 

(6)  I  Chilty's  PI.  580;  7  Cow.  46;  8  East,  442;  18  Johns.  30;  Breese,  268;  I 
Mo.  114;  I  Blackf.  77;  7  Ohio,  229;  11  Pick.  70;  13  III.  22;  l6  111.  269;  64 
111.  528;  77  111.  346;  57  111.  354;  59  111.  205  ;   106  111.  184;  109  111.  340. 

{c)  58  111.  246;  64  111.  528;  69  111.  51;  72  111.  118;  86  111.  176,  229. 

(d)  Minor,  414;  i  Blackf.  77;  5  Wend.  104;  29  111.  392;  51  III.  373;  79  111- 
582;  105  111.  147. 

(e)  13  East,  76;  5  Johns.  476;  13  Johns.  264,  402;  4  Denio,  65  ;  20  Barb. 
339;  n  Cush.  348;  23  Miss.  548;'  28  Miss.  56;  2  Curt.  C.  C.  97;  14  111.  77; 
2  Md.  284;  I  Wis.  21  ;  29  Vt.  354;  10  Bradw.  21,  263.  328;  92  111.  288,  549  5 
102  111.  434;  94  111.  362. 

(/)   I  Chit.  PI.  (6th  Ed.)  662;  9  Barb.  297;  12  111.  290;  46    111.  69;    67  111. 
244;  71  111.  214;  74  111.  306;  82  111.  93;  89  111.  125;   1F5  111.  646. 
(_g)   12  III.  390;  74  111.  306;  82  111.  93;   102  111.  655;  115  III.  483. 
(//)  37111.  156;  39111.367- 


ASSUMPSIT.  267 


Demurrers. 


Waiver  of  demurrer. — Where  a  party  files  a  demurrer  which 
is  overruled,  and  he  pleads  without  standing  by  his  demurrer, 
the  demurrer  is  waived,  (z) 

jfudginent  ttpoji  demurrer. — When  a  judgment  is  given 
against  a  party  on  demurrer  to  a  pleading,  if  he  wishes  to 
obtain  a  review  of  the  judgment  he  must  stand  by  his  plead- 
ing- (>) 

Where  a  demurrer  of  a  plaintiff  to  a  plea  is  overruled,  and 

he  abides  his  demurrer,  the  court  will  render  a  judgment  for 
the  defendant.  {Ji) 

A  demurrer  may  be  general  or  special.  A  general  demurrer 
is  one  which  excepts  to  the  sufficiency  of  a  previous  pleading 
in  general  terms,  without  pointing  out  specifically  the  nature 
of  the  objection;  and  such  demurrer  is  sufficient  when  the 
objection  is  on  matters  of  substance.  (/) 

A  special  demurrer  is  one  which  excepts  to  the  sufficiency 
of  the  pleadings  on  the  opposite  side,  and  shows  specifically 
the  nature  of  the  objection,  and  the  particular .  ground  of  ex- 
ception. It  is  necessary  where  the  objection  is  to  the  form,  (in) 
And  under  a  special  demurrer  the  party  may,  on  the  argu- 
ment, not  only  take  advantage  of  the  particular  faults  which 
his  demurrer  specifies,  but  also  all  objections  in  substance.  (//) 

It  is  not  enough  that  the  special  demurrer  objects  in  gen- 
eral terms  that  the  pleading  is  "  uncertain,  defective  and 
informal,"  or  the  like,  but  it  is  necessary  to  show  in  what 
respect  it  is  uncertain,  defective  and  informal.    {0) 

[i)  17  Bradw.  306;  Breese,  44;  I  Scam.  447,  471  ;  20  1)1.  509;  8  Ind.  254; 
4  Iowa,  321;  13  Ind.  382;  3  Iowa,  150;  6  Florida,  516;  3  Scam.  91;  42  111. 
291 ;  44  111.  37;  4  Scam.  8  ;  3  Gilm.  299;  20  Texas,  211;  9^60.418;  114 
111.  118;  14  Bradw.  579;    107  111.  317;  106  111.  216. 

{j)  18  Bradw.  573;  I  Scam.  471;  3  Scam.  91;  42  111.  291;  72  111.  161;  20 
111.  515;    44  111.  37. 

{k)  2  Scam.  253;  32  III.  399;  37  111.  156;  53  III.  177;  90  111.  604. 

{/)  I  Chit.  PI.  574,  639;  5  Greeul.  R.  415;  2  Hen.  &  Mun.  600;  Co.  Litt. 
72  a;  I  Dutch.  506;  li  Ark.  12;   2  Iowa,  532;  2  Barb.  160. 

(w)  5  Mass.  451;  2  Mass.  283;  31  Vt.  337;  2  Greene,  (Iowa),  582;  52  111. 
y^il ;    18  Ark.  347;  6  Md.  210;  20  Ohio,  loo;    94  111.  439. 

(«)   I  Chit.  PI.  576 ;    8  Cow.  709. 

(0)  I  Scam.  63;  1  Chiity  PI,  642;   Steph.  PI.  159,  161. 


268  ASSUMPSIT. 


Demurrer  to  declaration. 


If  an  unanswered  demurrer  is  on  record,  and  the  party 
demurring  goes  to  trial  by  consent,  it  will  not  be  cause  for 
reversal  of  the  judgment,  (s) 

Taking  leave  to  amend  a  plea  demurred  to,  will  be  held 
as  equivalent  to  a  confession  of  the  demurrer,  (i) 

The  rule  that,  on  demurrer,  judgment  shall  be  given 
against  the  party  who  commits  the  first  fault,  applies  only 
where  the  previous  pleading  is  bad  in  substance,  and  not 
defective  merely  in  form,  [tt) 

JVo.  122.     Demurrer  to  a  declaration. 
In  the Court; 


Term,  18—. 


Assumpsit. 

And  the  defendant,  by  E.  F.,  his  attorney, 
comes  and  defends,  etc.,  when,  etc.,  and  says,  that  the 
said  declaration,  and  each  count  thereof,  {or  "the  said 
first  count  of  the  said  declaration,")  and  the  matters  therein 
contained,  in  manner  and  form  as  the  same  are  above  set 
forth,  are  not  sufficient  in  law  for  the  plaintiff*  to  maintain 
his  aforesaid  action,  and  that  he,  the  defendant,  is  not 
bound  by  law  to  answer  the  same ;  and  this  he  is  ready  to 
verify  :  Wherefore,  for  want  of  a  sufficient  declaration  [or 
"first  count,"  etc.,)  in  this  behalf,  the  defendant  prays 
judgment,  and  that  the  plaintiff"  may  be  barred  from  main- 
taining his  aforesaid  action,  etc. 

When  the  demurrer  is  designed  to  be  special,  add  to  the 
above  form  as  follows  : 

And  the  defendant  shows  to  the  court  here  the  following 
causes  of  demurrer  to  the  said  declaration,  and  each  count 
thereof,  {or,  "first  count,")  that  is  to  say,  that  {here  set 
forth  the  particular  causes,  and  conclude  thus:)  And  also 
that  the  said  declaration,  and  each  count  thereof,  [or,  "first 
count,")  is  in  other  respects  uncertain,  informal  and  insuffi- 
cient, etc. 

(5)  22  111.  489;  26  111.  100. 
(0  26  111.  252. 

(ji)  8  Wend.  129 ;  6  Florida,  351 ;  2S  Ala.  618 :  2  Mich.  2t 


ASSUMPSIT.  269 


Demurrer  to  declaration — Joinder  in  demurrer. 


If  desired,  the  several  causes  of  demurrer  can  be  set 
forth  in  separate  paragraphs,  and  numbered. 


No.  123.      joinder  in  a  demurrer  to  a  declaration  orrcf- 

Heat  ion. 

In  the Court. 

Term,  18 — . 

A.  B.  ^ 

vs.  >  Assumpsit. 
C.  D.  3  And  the  plaintiff  says,  that  the  said  declara- 
tion {or  "first  count,"  or  "replication")  and  the  matters 
therein  contained,  in  manner  and  form  as  the  same  are 
above  set  forth,  are  sufficient  in  law  for  him  to  maintain  his 
aforesaid  action  ;  and  he  is  ready  to  verif}'^  the  same,  as  the 
court  here  shall  direct :  Wherefore,  inasmuch  as  the  de- 
fendant has  not  denied  the  said  declaration,  {or  "first 
count,"  or  "replication,")  the  plaintiff  prays  judgment,  and 
his  damages,  etc.,  to  be  adjudged  to  him,  etc. 

A  joinder  in  a  demurrer  to  a  declaration  or  replication  in 
debt,  covenant,  detinue,  case  or  trespass,  is  like  the  above 
form,  except  in  the  prayer  of  judgment,  which  is  the  same 
as  in  the  conclusion  of  a  replication  in  the  particular  form 
of  action. 

The  two  following  forms,  prescribed  in  England  by  the 
rule  of  court  of  Hil.  T.  4  Will.  IV,  are  given  in  Stephen 
on  Pleading,  pages  45  and  56  respectively. 

General  demurrer  to  a  declaration. 

{Title  of  court,  etc.)     And  the  said  defendant,  by , 

his  attorney,  says  that  the  declaration  is  not  sufficient  in 
law. 

Joinder  in  demurrer. 

{Title  of  court.,  etc.)  And  the  plaintiff  says  that  tne 
declaration  is  sufficient  in  law. 

It  will  be  observed  that  these  forms  contain  no  prayer  of 
judgment. 


270  ASSUMPSIT. 


Demurrer  to  declaration,  etc.     Observations. 


A  general  demurrer  to  a  declaration  containing  several 
counts,  one  of  which  is  good,  and  the  others  bad,  can  not 
be  sustained,  (v) 

On  demurrer  to  a  declaration  reciting  a  written  contract, 
and  the  circumstances  under  which  it  was  made,  the  writ- 
ing must  be  construed  in  the  light  in  which  it  is  presented 
by  the  declaration,  (w) 

Where  there  are  several  counts  in  a  declaration,  and  the 
defendant  demurs  to  the  whole  declaration,  and  says  that 
the  several  counts  are  not  sufficient  in  law,  "  nor  is  either 
of  them,"  etc.,  his  demurrer  will  be  regarded  as  separate 
to  each  count,  and  may  be  sustained  as  to  such  counts  as 
are  bad,  and  overruled  as  to  the  others ;  {x)  but  it  is  other- 
wise where  the  demurrer  is  to  "  both  counts."  (y) 

If  r.  defendant  wishes  to  avail  himself  of  a  defective 
averment  in  a  declaration,  he  must  demur  to  it ;  if  he  elects 
to  plead  to  the  declaration  and  go  to  trial,  he  has  no  right 
to  insist  upon  the  exclusion  of  evidence  because  some  nec- 
essary averment  is  omitted  or  defectively  set  forth,  (z) 

In  order  to  take  advantage  on  demurrer  of  a  variance 
between  the  bond  sued  on  and  the  declaration,  the  bond 
should  be  set  out  on  oyer,  {a) 

By  pleading  to  a  declaration  after  the  overruling  of  a 
demurrer,  a  party  waives  his  right  to  assign  the  decision 
of  the  court  for  error,  (d)  A  plea  to  the  merits  is  a  waiver 
of  a  demurrer,  but  a  demurrer  does  not  waive  a  plea  of 
that  kind,  (c) 

If  it  appears  on   the  face  of  the   declaration  that  the 

(v)  Breese,  84;  11  III.  218;  12  111.  14,  21S;  14  111.  77,  416;  i  Scam.  417; 
2  Scam.  356;  4  Gilm.  41 ;  16  111.  79;  23  III.  429;  21  111.  194;  15  Ohio,  333; 
14  Ohio,  220;  7  Cal.  463;  29  111.  439;   I  Chand.   (Wis.)  21;  33  111.  372. 

(w)  12  111.  218;  4  Florida,  382. 

(*)  13  111.  329. 

(j)  21  111.  194. 

(r)  3  Scam.  7;  24  Vermont,  114;  6  Eng.  12. 

(a)  15  111.  56;  Breese,  91. 

(3)  20  111.  509;   14  111.  277;  42  111.  366;  3  Scam.  49;  27  111.  iqS. 

(c)  3  Scam.  67;  17  Ark.  90.     See  29  111.  392. 


ASSUMPSIT.  271 


Demurrer  to  declaration,  etc. — Observations. 


plaintiff  has  neglected  to  sue  a  joint  contractor,  a  defend- 
ant may  demur  for  that  cause,  (d) 

It  is  error  to  take  judgment  on  a  demurrer  to  special 
counts,  while  a  plea  to  other  counts  remains  undisposed 
of.  (c) 

Counts  in  debt  and  assumpsit  can  not  be  joined ;  and  a 
demurrer  to  a  plea  in  such  a  case  should  be  carried  back 
to  the  declaration.  {/') 

A  single  count  may  be  divisible,  part  good  and  part  bad  ; 
in  such  a  case  a  demurrer  to  the  count  generally  will  not 
be  sustained,  [g") 

If  a  declaration  for  goods  sold  and  delivered  alleges  the 
goods  to  have  been  sold  for  a  stipulated  price,  and  then 
avers  a  promise  to  pay  the  worth  of  the  goods,  alleging 
them  to  be  worth  the  sum  previously  stated,  it  is  bad  on 
special  demurrer.  (//) 

In  assumpsit  upon  a  collateral  undertaking,  the  declara- 
tion should  state  the  consideration  for  the  promise,  or  i* 
will  be  bad  on  demurrer,  (i) 

A  judgment  upon  a  demurrer  for  defect  in  pleading  will 
not  bar  another  action  for  the  same  cause,  (j) 

A  demurrer  for  matter  of  form  should  in  all  cases  be 
special,  {k)  and  the  particular  exceptions  intended  to  be 
relied  on  should  be  minutely  set  forth.  (/)  An  objection 
for  matter  of  form,  not  noticed  in  a  special  demurrer,  will 
not  be  regarded  by  the  court,  (m) 

(d)  5  Ohio,  514;  20  N.  H.  150;  7  Cal.  330. 

(e)  24  111.  149. 

(/)  19  111.  273;  30  Ala.  562;  12  Geo.  189;  i  Cal.  393. 
{g)  8  Ind.  198;  34  Miss.  385;  11  Cush.  348;   28  Miss.  56;  15  B.  Men. 
(Ky.)  168;  II  Ind.  458;  33  111.  299 
(//)  4  Blackf.  126. 
(/)  5  Blackf.  564. 

O")  17  m-  25. 

(^k)  10  East,  359;  I  Chit.Pl.574;  4  Mass.  451 ;  2  Mass.  283 ;  20  Ohio,  100; 
2  Greene,  (Iowa)  582. 

(/)  I  Scam.  63  ;  5  Clarke,  521 ;  86  111.  587. 
(m)  2  Johns.  428;  52  111.  333. 


272  ASSUMPSIT. 


1 


Demurrer  to  plea  in  abatement — ^Joinder. 


Duplicity  can  be  taken  advantage  of  only  by  special  de- 
«  murrer,  {a)  stating  in  what  the  duplicity  consists,  (l?) 

The  objection  that  a  pleading  is  argumentative  can  only 
be  made  by  special  demurrer,  showing  wherein  the  plead- 
ing is  argumentative,  (c) 

A  declaration  upon  a  note  or  other  instrument,  though 
the  instrument  is  without  date,  should  allege  a  time  when 
it  was  made,  or  the  declaration  will  be  bad  on  special  de- 
murrer, (d) 

No.  124.     Demurrer  to  a  flea  in  abatement. 

{Title  of  court.,  etc.,  as  in  No.  123,  ante.)  And  the 
plaintiff  sa3^s,  that  the  said  plea  of  the  defendant,  and  the 
matters  therein  contained,  in  manner  and  form  as  the  same 
are  above  pleaded,  are  not  sufficient  in  law  to  quash  the 
said  writ,  and  that  he,  the  plaintiff,  is  not  bound  by  law  to 
answer  the  same  ;  and  this  he  is  ready  to  verify  :  Where- 
fore, for  want  of  a  sufficient  plea  in  this  behalf,  the  plaintifl" 
prays  judgment,  and  that  the  defendant  may  answer  further 
to  the  said  declaration,  etc. 

Special  causes  of  demurrer  may  be  added,  as  suggested 
under  form  No.  122,  ante.  It  is  said  that  the  plaintiff  need 
never  demur  specially  to  a  plea  in  abatement,  but  that  it 
appears  most  advisable  to  do  so,  when  the  plea  is  merely 
informal.  (^) 

No,  125.     yoinder  in  a  demurrer  to  a  flea  in  abatement. 

{Title  of  court,  etc.,  as  in  No.  122,  ante.)  And  the 
defendant  says,  that  his  said  plea,  and  the  matters  therein 
contained,  in  manner  and  form  as  the  same  are  above 
pleaded,  are  sufficient  in  law  to  quash  the  said  writ ;  which 
said  plea,  and  the  matters  therein  contained,  he  is  ready  to 
verify,  as  the  court  here  shall  direct :  Wherefore,  inasmuch 

{a)  2  Root,  146;   I  Blackf.  291  ;  26  111.  184;  20  Pick.  356;  86  111.  577;  2 
Hilton,  (N.  Y.)  3S9;  34  Miss.  688;    10  Gratt.  (Va.)  255;   i  Chit.  PI.  574. 
{b)  86  III.  577. 

{c)  6  Ind.  263;  2  Sandf.  306;  32  Vermont,  337;  8  Foster,  250;  66  111.  267. 
\d)  3  Blackf.  484. 
(<r)    I  Chit.  PI.  404,  576. 


ASSUMPSIT.  273 


Demurrer  to  plea  in  bar. 


as  the  plaintiff  has  not  denied  the  said  plea,  the  defendant 
as  before  prays  judgment  of  the  said  writ,  and  that  the 
same  may  be  quashed,  etc. 

A  demurrer  to  a  plea  to  the  jurisdiction,  and  a  jomder 
in  such  demurrer,  will  follow  the  language  of  the  plea. 

After  a  demurrer  to  a  plea  in  abatement  has  been  over- 
ruled, the  court  can  not  grant  leave  to  reply  to  the  plea,  (r) 

The  proper  judgment  in  overruling  a  demurrer  to  a  plea 
in  abatement  is,  that  the  writ  be  quashed;  (5)  and  if  the 
demurrer  is  sustained,  the  judgment  is  quod  respondeat 
ouster,  {t) 

The  general  rule,  that  a  demurrer  must  be  carried  back 
and  sustained  to  the*  first  defective  pleading,  does  not  apply 
so  as  to  carry  a  demurrer  behind  a  plea  in  abatement,  (u) 

No.  126.     Demurrer  to  a  -plea  in  bar. 

(Similiter  to  general  issue ^  as  ante,  IVo.  69.)  And  the 
plaintiff,  as  to  the  plea  of  the  defendant  by  him  secondly 
above  pleaded,  says  that  the  same,  and  the  matters  therein 
contained,  in  manner  and  form  as  the  same  are  above 
pleaded,  are  not  sufficient  in  law  to  bar  him,  the  plaintiff, 
from  having  his  aforesaid  action,  and  that  he  is  not  bound 
by  law  to  answer  the  same  ;  and  this  he  is  ready  to  verify  : 
Wherefore,  for  want  of  a  sutficient  plea  in  this  behalf,  the 
plaintiff  prays  judgment,  and  his  damages,  etc.,  to  be  ad- 
judged to  him,  etc. 

Special  causes  of  demurrer  may  be  added,  as  suggested 
under  form  No.  122,  ante. 

In  debt,  the  plaintiff  "prays  judgment,  and  his  debt 
aforesaid,  together  with  his  damages,  etc.,  to  be  adjudged 
to  him,  etc." 

{r)  16  111.  306;  20  III.  330;  Tidd,  643;  i  Chit.  PI.  405;  2  Gilin.  69;  i 
Scam.  319. 

(51  2  Gilm.  69;  20  111.  330;   I  Scam.  319;   i  Chit.  PI.  405. 
(/)  14  111.  49;  I  Chit.  PI.  405. 

(«)  14  111.  49;  8  Eng.  (13  Ark.)  335;  4  R.  I.  no;   i  Chit.  PI.  405. 
18 


274  ASSUMPSIT. 


Joinder — Demurrer  to  plea  in  bar — Observations. 

No.   127.      Joinder  in  a  d€ntii?-7-cr  to  a  ^lea  in  bar. 

{Title  of  court,  etc.,  as  in  ]Vo.  122,  ante.)  And  the  de- 
fendant says,  that  his  said  plea  by  him  secondly  above 
pleaded,  and  the  matters  therein  contained,  in  manner  and 
lorm  as  the  same  are  above  pleaded,  are  sufficient  in  law 
to  bar  the  plaintitT  from  having  his  aforesaid  action ;  and 
he,  the  defendant,  is  ready  to  verify  the  same,  as  the  court 
here  shall  direct :  Wherefore,  inasmuch  as  the  plaintiff  has 
not  denied  the  said  plea,  the  defendant  prays  judgment, 
and  that  the  plaintiff  may  be  barred  from  having  his  afore- 
said action,  etc. 

A  demurrer  to  a  special  plea  can  not  be  carried  back  to 
the  declaration,  after  a  direct  demurrer  to  the  declaration 
has  been  overruled,  and  the  general  issue  pleaded,  {v) 

A  plea  which  is  contradictory  is  bad  on  general  demur- 
rer. {t.v) 

A  plaintiff  can  not  demur  and  reply  at  the  same  time  to 
the  same  plea,  [x] 

Where  the  general  issue  is  pleaded  to  the  whole  decla- 
ration, a  demurrer  to  a  special  plea  can  not  be  carried  back 
to  the  declaration;  (_y)  but  a  plea  of  non  est  faciuui,  in 
covenant,  will  not  prevent  a  demurrer  to  a  special  plea 
from  being  carried  back  to  the  declaration,  {z^ 

A  plaintiff  can  not  crave  oyer  of  a  judgment  pleaded, 
and  demur.     The  plea  should  be  traversed,  [a) 

A  plea  of  failure  of  consideration  should  set  out  what 
the  consideration  was,  and  in  what  particular  it  failed,  or  it 
will  be  bad  on  demurrer,  {b) 

A  plea  which  professes  to  answer  the  whole  cause  of 

(»)  23  111.  496. 

(w)  4  Scam.  51. 
(*)  2  Blackf.  34;  17  Ark.  90. 
.     (^)  26  111.  34;  IS  Wend.  353;  14  Wend.  183. 
it)  26  111.  313. 
(a)  17  111.  387. 
(ft)  17  111.  25;  15  Ala.  141;  2  Carter,  (Ind.)  579. 


ASSUMPSIT.  275 


Demurrer  to  plea  in  bar — Observations. 


action,  but  only  answers  a  part  of  it,  is  obnoxious  to  a  de- 
murrer, (c) 

Where  the  defendant's  plea  goes  to  bar  the  action,  if  the 
plaintiff  demurs  to  it,  and  the  demurrer  is  determined  in 
favor  of  the  plea,  judgment  oi  nil  ca-piat  should  be  entered, 
notwithstanding  there  may  be  also  one  or  more  issues  of 
fact ;  for  the  reason  that  upon  the  whole  it  appears  the 
plaintiif  had  no  cause  of  action,  (^d)  So  where  there  are 
two  pleas,  and  replications  to  both,  to  which  demurrers 
are  interposed,  if  the  replications  are  defective,  and  one  of 
the  pleas  is  good,  and  goes  in  bar  of  the  action,  the  plaint- 
iff standing  by  his  defective  replication,  judgment  in  chief 
will  go  for  the  defendant,  although  the  other  plea  is  bad ; 
for. one  party  can  not  have  a  judgment  upon  the  law,  and 
the  other  upon  the  facts.  (^) 

A  failure  to  abide  by  a  demurrer  precludes  the  taking 
advantage  on  error  of  any  defect  in  the  pleading.  {/) 

A  plea  amounting  to  the  general  issue  is  bad  on  special 
demurrer;  (^)  but  the  objection  can  not  be  taken  on  gen- 
eral demurrer,  {h) 

Where  a  demurrer  to  a  plea  is  overruled,  the  court 
should  render  judgment  for  the  defendant,  unless  the 
plaintiff'  asks  and  obtains  leave  to  withdraw  the  demurrer, 
and  reply.  (/) 

Where  a  defective  plea  is  filed,  the  proper  mode  to  meet 
and  dispose  of  it  is  by  demurrer — not  to  entirely  disregard  it 
as  no  plea.  (7) 

(f)  22  111.  40,  313;  12  Wend.  399;  34  Ala.  512;  35  Miss.  698;  30  111.  404; 
64  111.  151;  68  111.  226,236. 

(</)  32  111.  399;  I  Saund.  80,  a,  note  i.     See  37  III.  156. 

(e)  32  111.  399.     See  37  111.  156;  39  111.  367;  12  Wend.  165. 

(/)  44  111.  37. 

ig)  I  Gilm.  333;  4  Scam.  412;  13  111.  133;  25  111.  317;  i  Mass.  459;  3 
Day,  431;  12  Conn.  365;  14  Gratt.  (Va.)  447;  33III.  30S,  25  111.  317;  35  IlL 
518;  54  111.  201 ;  43  111.  134.     See  37  111.  530. 

(>4)46m.  145  548  111.  492. 
•    (/)  2  Scam.  256. 

(/)  86  111.  230. 


^76  ACCOUNT. 


Where  the  action  lies,  etc. 


CHAPTER  IV. 


ACCOUNT. 


The  action  of  account  has  fallen  into  disuse  in  most  of 
the  states  of  the  Union,  even  where  it  has  not  been  abol- 
ished. It  is  however  recognized  by  the  statutes  of  Illinois, 
and  of  some  other  states ;  and  though  it  is  very  seldom 
resorted  to,  a  small  space  in  this  work  will  be  given  to  the 
consideration  of  this  remedy. 

Where  the  action  lies,  etc. — "By  the  common  law,  ac- 
compt  lay  only  against  a  guardian  in  socage,  bailiff,  or 
receiver,  or  by  one  in  favor  of  trade  and  commerce,  nam- 
ing himself  merchant,  against  another,  naming  him  mer- 
chant, and  for  the  executors  of  a  merchant ;  for  between 
these  there  was  such  a  privity,  that  the  law  presumed  them 
conusant  of  each  other's  disbursements,  receipts  and  ac- 
quittances." («) 

If  two  guardians  were  in  common,  and  one  took  the 
entire  profits  to  his  own  use,  account  lay.  One  joint  lessee 
for  years  might  have  account  against  the  other,  if  he  took 
the  issues  and  profits  to  his  own  use ;  but  not  so  of  tenants 
in  common  (before  the  statute  of  Anne),  {b) 

This  was  also  a  proper  action  to  compel  a  settlement  of 
accounts  between  partners,  (c) 

If  a  receiver  appoinis  a  deputy,  account  lies  by  the  re- 
ceiver against  the  deputy,  {d)     So  the   action  lies  by  a 


(a)  Bac.  Abr.    Acct.   A. 

(^»)  Ibid.,  note. 

(c)  Ibid.,  note. 

{d)  I  Rol.  ii8,  I,  20;   I  Com.  Dig.  191. 


ACCOUNT.  277 


Where  the  action  lies,  etc. 


sheriff  against  his  deputy  ;  (e)  and  against  an  attorney  for 
money  received  for  his  client ;  (y)  and  by  a  cestui  que 
trust  against  a  trustee  appointed  by  will,  {g)  Where  there 
is  a  running  account  between  a  merchant  and  a  broker, 
the  proper  remedy  is  an  action  of  account,  to  recover  the 
amount  due.  {h)  A  landlord  may  have  this  action  against 
his  tenant,  to  recover  that  part  of  the  profits  of  the  property 
leased  which  by  his  contract  he  was  bound  to  render  as 
rent.  (/)  It  will  lie  against  one  as  receiver,  if  without  di- 
rection he  receives  rents  or  debts  due  to  another.  {J)  In 
order  to  charge  a  man  as  receiver,  it  is  not  necessary  that 
he  should  have  any  specific  appointment  as  such,  {k) 

"The  statute  of  13  Edw.  i,  cap.  23,  gives  an  action  oi 
accompt  to  executors  ;  the  25  Edw.  3,  st.  5,  cap.  5,  to  ex- 
ecutors of  executors;  the  31  Edw.  3,  c.  11,  to  administra- 
tors; and  by  the  statute  of  4  Ann.,  c.  16,  sect.  27,  (/) 
actions  of  accompt  may  be  brought  against  the  executors 
and  administrators  of  every  guardian,  bailiff,  and  receiver, 
and  by  one  joint-tenant,  tenant  in  common,  his  executors 
and  administrators,  against  the  other  as  bailiff  for  receiv- 
ing more  than  his  share,  and  against  his  executors  and 
administrators."  {m) 

The  provisions  of  the  Illinois  statute  of  account,  in  re- 
spect to  when  this  action  may  be  maintained,  are  as  fol- 
lows : 

"Sec.  I.  When  one  or  more  joint  tenants,  tenants  in 
common,  or  co-parceners  in  real  estate,  or  any  interest 
therein,  shall  take  and  use  the  profits  or  benefits  thereof, 
in  greater  proportion  than  his,  her  or  their  interest,  such 


(c)  I  Com.  Dig.  191;  I  Rol.  ii8,  i,  25. 

(/)  4  Watts,  420. 

{g)  2  Watts,  95. 

(/;)  I  Wheat.  Selw.  3 ;  2  Camp.  238. 

(0  I  Watts  &  Serg.  530;  iS  Verm.  347. 

{j)  1  Com.  Dig.  190;  6  Mod.  92. 

{k)  3  Barb.  Sup.  C.  R.  (N.  Y.)  423. 

(/)  See  this  stat.,  i  Freem.  Pr.  294,  note. 

(»i)  Bac.  Abr.   Acct.    A. 


273  ACCOUNT. 


Where  the  action  lies,  etc. 


person  or  persons,  his,  her  or  their  executors  and  admin- 
istrators, shall  account  therefor  to  his  or  their  co-tenant, 
jointly  or  severally. 

"Sec.  2.  Joint  tenants,  tenants  in  common,  and  co- 
parceners in  any  estate  real  or  personal,  may  maintain 
actions  of  account  against  their  co-tenants,  who  receive  as 
bailiffs  more  than  their  due  proportion  of  the  profits  and 
benefits  of  such  estate. 

"Sec.  3.  Any  executor,  being  a  residuary  legatee,  may 
bring  and  maintain  an  action  of  account  against  his  co- 
executor  ;  and  any  other  residuary  legatee;  shall  have  the 
same  remedy  against  executors  and  administrators. 

"  Sec.  4.  Actions  of  account  may  be  maintained  by  and 
against  executors  and  administrators,  in  all  cases  in  which 
the  same  might  have  been  maintained  by  and  against  their 
testator  or  intestate. 

"Sec.  6.  When  any  person  is  or  shall  be  liable  to  ac- 
count, as  guardian,  bailiff",  or  receiver,  or  otherwise,  to  an- 
other, and  will  not  give  an  account  willingly,  the  party  to 
whom  such  account  ought  to  be  made  may  bring  his  action 
of  account,  and  it  the  person  against  whom  such  action 
may  be  brought,  being  summoned,  does  not  appear  at  the 
return  of  the  writ,  then  the  defendant  shall  be  attached  by 
his  body  to  appear  and  render  his  account."  (n) 

Also,  by  section  119  of  the  statute  of  wills,  it  is  provided, 
that  "where  there  are  two  or  more  executors  or  adminis- 
trators of  an  estate,  and  one  of  them  takes  all  or  a  greater 
part  of  such  estate,  and  refuses  to  pay  the  debts  of  the  de- 
cedent, or  refuses  to  account  with  the  other  executor  or 
administrator,  in  such  case  the  executor  or  administrator  so 
aggrieved  may  have  his  action  of  account,,  or  suit  in  equity, 
against  such  delinquent  executor  or  administraitor,  and  re- 
cover such  proportionate  share  of  said  estate  as  shall 
belong  to  him ;  and  every  executor,  being  a  residuary 
legatee,  may  have  an  action  of  account,  or  suit  in  equity, 

(n)  I  Starr  &  Curtis'  An,  Stat.  187-188;  Rev.  Stat.  (1877)  96-97. 


ACCOUNT.  <279 

Where  the  action  lies — Demand. 

against  his  co-executor  or  co-executors,  and  recover  his  part 
of  the  estate  in  his  or  their  hands.  Any  other  legatee  may 
have  the  Hke  remedy  against  the  executors:  Provided,  that 
before  any  action  shall  be  commenced  for  legacies,  as  afore- 
said, the  court  shall  order  them  to  be  paid."  (<?) 

The  elementary  books  which  treat  of  the  action  of  account, 
and  almost  every  reported  case  relating  thereto,  inform  us 
that  it  is  an  action  seldom  brought.  In  England  it  seems  to 
have  fallen  almost  entirely  into  disuse  ;  and  although  the  action 
is  expressly  authorized  by  the  statutes,  a  case  is  seldom  to  be 
met  with  in  the  courts  of  Illinois,  {p)  Frequently,  where  this 
remedy  applies,  the  matters  of  account  are  of  an  intricate 
and  complicated  character,  involving  various  interests,  and 
parties  choose  rather  to  resort  to  a  court  of  chancery,  where 
all  the  interests  involved  can  be  more  satisfactorily  adjusted 
and  settled.  (^) 

This  action  has  however  (in  Illinois)  some  advantages  over 
proceedings  in  chancery,  which  should  not  be  overlooked. 
It  may,  under  certain  circumstances,  be  commenced  by  attach-' 
ment,  (r)  or  by  capias,  {s)  thus  affording  to  the  plaintiff  the 
advantage  of  those  writs,  which  may  give  him  more  speedy 
means  of  securing  his  claim  than  can  be  given  in  equity.  It 
will  be  observed,  that  the  6th  section  of  the  statute  provides 
that  if  the  defendant  does  not  appear  at  the  return  of  the 
writ,  he  shall  be  attached  by  his  body  to  appear  and  render 
his  account. 

Demand. — A   demand   to   account,    or   something    which 
amounts  to  such  demand,  is   in  general   necessary  to   per-  i 
feet   the    cause   of  action,  {f)     But    the    plaintiff  is  not  put  ' 

(o)  See  4  Gilm.  429. 
(/))  12  111.  116;     See  3  Scam.  563. 
(^)\^ee  12  til;  116;  3  Scam:  563. 
(r).li-Ill.'47i:  • 

-(^•KeVrStat.  (1874)  178;  Rev.  Stat.  (1877)  167. 

(/)-*2-¥rrm.  501 ;  25  Conn.  150;  I  Taunt.  57;  74  Eng.  C.  L.  R.   74.     But 
see  5  Day,  (Conn.)  452. 


28o  ACCOUNT. 


Commencement  of  action — Declarations — Against  bailiff,    etc. 

upon  proof  of  the  demand,  except  by  plea  denying  it ;  and 
the  plea  of  "  never  bailiff"  does  not  have  that  effect,  (u) 

Time  for  which  account  is  to  be  taken. — The  weight  of 
authority  seems  to  sustain  the  rule,  that  even  if  the  period 
to  which  the  account  is  to  extend  is  specified,  yet  the  ac- 
count shall  be  brought  down  to  the  time  of  the  award  of 
the  auditors,  without  regard  to  the  time  laid  in  the  declara- 
tion, [v] 

Trsecipefor  summons,  or  capias,  in  account. 

In  the Court  of  the  County  of ,  in  the  State  of 

Illinois. 

A.  B.  ^ 
vs.     >  Account. — Damages  $ . 

CD.) 

The  clerk  of  the  said  court  will  issue  a  summons,  {or 
'^'■capias   ad   respondendum^'')    as   above,   directed  to  the 

sheriff  of  the  county  of ,  and  returnable  to  the  > 

term,  i8 — . 

{Date.) 


To  G.  H.,  Clerk,  etc. 


E.  F.,  Attorney  for  Plaintiff. 


No.  128.     Against  a  bailiff,  to  account  for  goods. 

In  the Court. 

Term,  18—. 

State  of  Illinois,  > 

County  of ,        >  set.     A.  B.,  plaintiff,  by  E.  F.,  his 

attorney,  complains  of  C.  D.,  defendant,  of  a  plea  that  he 
render  to  the  plaintiff  a  reasonable  account  for  the  time  he, 
the  defendant,  was  (*)  bailiff  to  the  plaintiff,  in  the  county 

aforesaid :  For  that  whereas  the  defendant,  on  the  

day  of ,  in  the  year  18 — ,  and  from  thence  until  the 

day  of ,  in  the  year  18 — ,  was  there  bailiff  to  the 

plaintiff,  and  during  that  time  there  had  the  care  and  ad- 
ministration of  divers  goods  of  the  plaintiff,  to  wit,  sixty 
barrels  of  sugar,  twenty  sacks  of  coffee  and  fifty  sacks  of 

(a)  12  Verm.  501.     See  18  Verm.  347;  21  Verm.  173. 
(f)  I  Freem.  Pr.  246. 


ACCOUNT.  281 


Declarations — against  receiver,  etc. 


salt,  of  the  value  of dollars,  to  merchandize  and  make 

profit  thereof  for  the  plaintiff,  and  thereof  to  render  him  a 
reasonable  account,  when  he,  the  defendant,  should  be 
thereto  requested  :  Yet  the  defendant,  though  he  was  after- 
wards, to  wit,  on,  etc.,  there  requested  by  the  plaintiff 
thereunto,  has  not  rendered  to  him  a  reasonable  account  of 
the  said  goods,  but  refuses  so  to  do  ;  to  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

A  person  is  chargeable  as  bailiff  where  he  has  the  ad- 
ministration or  charge  of  lands,  goods  or  chattels,  (or  even 
moneys,)  to  make  the  best  benefit  thereof  for  the  owner,  (w) 
Against  such  bailiff  an  action  of  account  lies  for  the  profits 
which  he  has  raised  or  made,  or  might,  by  his  industry 
and  care,  have  reasonably  raised  or  made,  his  reasonable 
charges  and  expenses  being  deducted,  (x) 

Where  the  defendant  is  charged  as  bailiff,  the  declara- 
tion should  specify  the  particular  goods  of  which  he  had 
the  care  and  management,  (y) 

JVo.  129.     Against  a  receiver. 

{As  in  last  ■precedent,  to  the  asterisk:^  receiver  of  the 
moneys  of  the  plaintiff,  in  the  county  aforesaid  :  For  that 
whereas  the  defendant  was  there  receiver  of  the  moneys 

of  the  plaintiff,  from  the  day  of,   etc.,   until,   etc., 

during  which  time  the  defendant  there   received,  of  the 

moneys  of  the  plaintiff, dollars  by  the  hands  of  one 

J.  K., dollars  by  the  hands  of  one  L.  M.,  and 

dollars  by  the  hands  of  one  N.  O.,  amounting  in  the  whole 

to dollars,  to  render  a  reasonable  account  thereof  to 

the  plaintiff,  when  he,  the  defendant,  should  be  thereto 
requested  :  Yet  the  defendant,  though  he  was  afterwards, 
to  wit,  on,  etc.,  there  requested  by  the  plaintiff  so  to  do, 
has  not  rendered  to  him  a  reasonable  account  of  the  said 
moneys,  but  so  to  do  has  refused,  and  still  refuses  ;  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

(w)  I  Humph.  Pr.  184;  Co.  Litt.  271  ;  i  Leon.  245. 

(*)  12  Mass.  149. 

(j';  3  Hill,  (N.  Y.)59. 


282  ACCOUNT. 


Declarations — Tenant  in  common  against  co-tenant. 

A  person  is  chargeable  as  receiver  where  he  receives 
money  for  the  owner ;  (z)  but  not  where  he  receives  prop- 
erty to  sell  for  the  owner,  and  retains  the  money  arising 
from  the  sales — there  he  is  chargeable  as  bailiff.  He  is 
also  chargeable  as  receiver  of  goods,  when  such  receiving 
is  not  coupled  with  an  authority  to  sell,  (a) 

A  receiver  is  answerable  only  for  the  precise  sum  of 
money,  or  goods,  received  ;  (d)  and  he  can  only  claim  such 
charges  and  expenses  as  are  agreed  upon,  (c) 

It  seems  a  defendant  may  be  charged  both  as  bailiff  and 
receiver,  in  the  same  count,  (d) 

In  declaring  against  one  as  receiver,  it  is  necessary  to 
set  forth  by  whose  hands  he  received ;  bi\t  where  he  is 
charged  as  bailiff  it  is  not  necessary,  (e)  nor,  it  is  said, 
when  the  action  is  between  merchants.  (_/*)  Particularity 
with  regard  to  the  exact  amount  of  the  money,  or  the  pre- 
cise time  of  receiving  it,  is  not  required,  (g-)  "., 

Al^o.  130.     By  one  tenant  in  cojnmon  against  his  co-tenant. 

{Title  of  court,  etc.)  A.  B.,  plaintiff,  by  E.  F.,  his 
attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of  ac- 
count render:  For  that  whereas  on  the day  of,  etc., 

and  from  thence  until  the day  of,  etc.,  {or  "until  and 

at  the  time  of  the  commencement  of  this  suit,")  the  plaintiff 
was  seised  in  his  demesne,  as  of  fee,  of  the  one  undivided 
half  part  of  certain  parcels  of  land,  situate,  etc.  ;  and  the 
defendant,  and  divers  other  persons  whose  names  are  to 
the  plaintiff  unknown,  during  all  that  time  held  the  said 
parcels  of  land  together  with  the  plaintiff,  as  tenants  in 
common ;  and  the  defendant  there  had  also,  during  all  that 
time,  the  care  and  management  of  the  whole  of  the  said 

(z)  Co.  Litt.  271. 

(a)  I  Humph.  Prec.  184.       ' 

(*)  01.  Prec-  96. 

(c)  Co.  Litt.  i7i  ;  6  Penn.  284- 

{d)  I  Humph.  Prec.  1S4,  186. 

(e)  Co.  Litt.  172,  a;  3  Keb.  425;   11  Mod.  186;  2  Wash.  C.  C.  R.  482. 

(/)  2  Chipm.  91.     See  11  Mod.  1S6;  3  Ver.  243. 

(^)  2  Lev.  126. 


ACCOUNT.  283 


Declarations — Partner  against  partner. 


uarcels  of  land,  to  receive  and  take  the  profits  and  benefits 
thereof,  and  as  bailifl^'  ot  the  plaintiff  of  what  he,  the  de- 
fendant, received  more  than  his  due  proportion  of  the  same, 
to  render  a  reasonable  account  thereof  to  the  plaintifl',  and 
his  share  thereof,  when  he,  the  defendant,  should  be  thereto 
requested,  according  to  the  form  of  the  statute,  etc.  :  And 
although  the  defendant,  during  the  time  aforesaid,  there 
received  more  than  his  due  proportion  of  the  profits  and 
benefits  of  the  said  parcels  of  land,  and  the  plaintifT's  share 
thereof,  that  is  to  say,  the  whole  of  the  said  profits  and 
benefits,  yet  the  defendant',  though  he  was  afterwards,  to 
wit,  on,  etc.,  there  requested  by  the  plaintiff  so  to  do,  has 
not  rendered  to  him  a  reasonable  account  of  the  said  profits 
and  benefits  so  received  as  aforesaid,  or  any  part  thereof, 
or  of  the  said  share  of  the  plaintiff',  or  any  part  thereof, 
but  refuses  so  to  do,  contrar}^  to  the  form  of^  the  statute, 

etc.  ;  to  the  damage  of  the  plaintiff  of  dollars,  and 

therefore  he  brings  his  suit,  etc. 

A  second  count  may  be  added,  omitting  any  allegation 
that  the  defendant  was  bailiff,  and  following  the  language 
of  the  first  section  of  the  statute — charging  that  the  de- 
fendant took  and  used  the  profits  and  benefits  in  greater 
proportion  than  his  interest.  A  third  count  may  also  be 
added,  charging  the  defendant  as  bailiff  of  a  moiety  of  the 
land,  without  disclosing  that  he  was  tenant  in  common. 

No,  131.     Partner  against  partner,  as  receiver. 

{Commence  as  in  last  precedent.)  For  that  whereas 
on,  etc.,  and  from  thence  until,  etc.,  in  the  count}^  afore- 
said, the  plaintiff'  and  the  defendant  were  partners  in  trade, 
equal  in  interest,  under  the  name  and  firm  of,  etc.  ;  and 
during  that  time  the  defendant  was  there  receiver  of  the 
moneys  of  the  plaintiff'  and  the  defendant,  belonging  to 
them  as  partners  as  aforesaid,  and  received  of  such  moneys, 
by  the  hands  of  divers  persons,  divers  sums,  amounting  to 

dollars,  for  the  common  benefit  of  the  plaintiff'  and 

the  defendant,  and  to  render  to  the  plaintiff'  a  reasonable 
account  respecting  the  same,  when  he,  the  defendant, 
should  be  thereto  requested  :  Yet  the  defendant,  though  he 
was  afterwards,  to  wit,  on,  etc.,  there  requested  by  the 


284  ACCOUNT. 


Declarations— Partner  against  partner. 


plaintiff  so  to  da,  has  not  rendered  to  him  a  reasonable  ac- 
count in  that  behalf,  but  so  to  do  has  refused,   and  still 

refuses  ;  to  the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc.  (§g") 

In  another  count  the  defendant  may  be  charged,  in  like 
manner,  with  receiving  divers  goods,  etc.,  describing  them 
generally ;  and  other  counts  may  charge  him  as  bailiff  of 
money  and  goods,  to  merchandize,  etc.,  for  the  common 
benefit  of  the  partners ;  and  others  as  receiver,  and  as 
bailiff,  of  the  plaintiff's  share  of  the  money  and  goods  ;  and 
still  others  as  tenant  in  common  of  the  goods,  with  the 
plaintiff. 

The  general  rule  is,  that  where  the  plaintiff  declares 
against  one  as  receiver,  the  declaration  must  specify  the 
amounts  received,  and  by  whose  hands ;  but  it  is  said  that 
"  where  the  ground  of  liability  is  a  privity  or  connection 
as  a  partner,  or  as  prmcipal  and  agent,  or  bailor  and  bailee, 
the  nature  of  which  leads  to  an  habitual  receiving,  and 
disposing  of  property,  the  allegation  of  that  privity,  and  of 
the  receiving  of  divers  sums,  etc.,  in  consequence  of  it,  is 
sufficient,  without  stating  the  sums  or  the  persons  from 
whom  received."  [/i)  From  the  language  of  the  decisions 
and  precedents,  however,  it  would  seem  better  to  allege  the 
sums  and  persons,  where  it  can  be  done.  Upon  proof  of 
a  receipt  by  the  hands  of  any  one  of  the  persons  mentioned 
in  the  declaration,  the  plaintiff  is  entitled  to  a  general  ver- 
dict under  an  issue  upon  the  plea  of  ne  unques  receiver,  (z) 

It  has  been  said  that  in  account  between  mercantile  part- 
ners, the  defendant  should  be  charged  as  receiver.  (/)  But 
this  would  appear  to  depend  on  the  circumstances,  since  in 
the  precedents  partners  are  sometimes  charged  as  bailiffs, 

(^^)  See  3  Verm.  243;  i  Dall.  340;  2  S.  &  R.  317;  10  S.  &  R.  219;  3 
"Wash.  C.  C.  R.  482 ;  Ol.  Prec.  103. 

(k)  I  Freem.  Pr.  244;  3  Verm.  243.  See  2  Chip.  91;  11  Mod.  1S6;  01. 
Prec.  104. 

(/)  ID  Serg.  &  R.  219. 

(j')  3  Hill,  N.  Y.,  59;  6  Wharton,  615,  621. 


ACCOUNT.  285 


Declarations — Partner  against  partners. 


ai«d  sometimes  as  receivers ;  and  in  some  cases  they  are 
charged  as  receivers  in  one  count,  and  as  bailiffs  in  another 
count,  of  the  same  declaration,  {k) 


No.  132.     Partner  against  pai-tncrs^  as  bailiffs  of  lands 

and  goods. 

{Cormtience  as  in  No.  130,  ante.)  For  that  whereas 
on,  etc.,  and  from  thence  until,  etc.,  in  the  county  afore- 
said, the  defendants  were  bailiffs  to  the  plaintiff  of  certain 
parcels  of  land  of  the  plaintiff  and  the  defendants,  situate, 
etc.,  with  the  appurtenances  ;  and  for  all  that  time  the  de- 
fendants there  had  the  care  and  management  of  the  said 
parcels  of  land,  with  the  appurtenances,  and  received  the 
issues  and  profits  thereof,  for  the  common  benefit  and  profit 
of  the  plaintiff  and  the  defendants,  and  to  render  to  the 
plaintiff  a  reasonable  account  of  the  same,  when  they,  the 
defendants,  should  be  thereto  requested  :  And  also,  during 
all  that  time,  the  defendants  were  there  bailiffs  to  the 
plaintiff,  and  had  the  care  and  management  of  great  quan- 
tities of  hay,  etc.,  etc.,  of  the  plaintiff  and  the  defendants, 
for  the  common  benefit  and  profit  of  the  plaintiff  and  the 
defendants,  and  to  render  to  the  plaintiff  a  reasonable  ac- 
count thereof,  when  they,  the  defendants,  should  be  thereto 
requested.  Yet  the  defendants,  though  they  were  after- 
wards, to  wit,  on,  etc.,  there  requested  by  the  plaintiff  so 
to  do,  have  not  rendered  to  him  a  reasonable  account  of  the 
premises,  or  any  part  thereof,  but  so  to  do  have  refused, 
and  still  refuse ;  to  the  damage,  etc.  (/) 

When*the  action  is  against  two  or  more  partners,  a  joint 
liability  to  account  must  be  shown,  {in)  It  has  been  held 
that  the  action  would  not  lie  where  there  were  more  than 
two  partners;  («)  but  this  is  denied,  (<?)  and  precedents  of 

(^)  IS  S.  &  R.  153;  01.  Prec.  97-104;  Humphr.  Prec.  1S9. 
(/)  01.  Prec.   100. 
(«)  15  S.  &  R.  153. 

(«)  2  Conn.  423,  4.^9,  430;  24  N.  Y.  143.  See  25  Verm.- 340;  3  Hill,  N. 
Y.  70;  Co.  Litt.  172,  a. 

{fi)  15  S.  &  R.  153.     See  i  Freem.  Pr.  239-243. 


286  ACCOUNT. 


Pleas — Never  bailiff,  never  receiver,  etc. 


declarations  by  one  partner  against  several  are  found  in  the 
reports  and  the  books  of  forms.  (^) 

No.  133.     Plea — never  bailiff. 

In  the Court. 

Term,  18—. 

Account. 

And  the  defendant,  by  G.  H.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  the  plaintiff  ought  not  to  have  his  aforesaid  ac- 
tion against  him,  the  defendant,  because  he  says,  (*)  that 
he  never  was  bailifi'  to  the  plaintiff,  or  had  the  care  and 
administration  of  the  goods  in  the  said  declaration  men- 
tioned, to  merchandize  and  make  profit  thereof  for  the 
plaintiff,  or  thereof  to  render  to  the  plaintiff  a  reasonable 
account,  when  he,  the  defendant,  should  be  thereto  re- 
quested, in  manner  and  form  as  the  plaintiff  has  in  the 
said  declaration  above  alleged :  And  of  this  the  defendant 
puts  himself  upon  the  country,  etc. 

No.   134.     Pica — never  receiver. 

(^As  in  the  last  frecedent,  to  the  asterisk:)  that  he  never 
was  receiver  to  the  plaintiff',  of  the  moneys  in  the  said  dec- 
laration mentioned,  or  any  part  thereof,  by  the  hands  of 
the  said  J.  K.,  L.  M.  and  N.  O.,  or  any  or  either  of  them, 
to  render  to  the  plaintiff'  a  reasonable  account  thereof,  when 
he,  the  defendant,  should  be  thereto  requested,  in  man- 
ner and  form  as  the  plaintiff  has  above  in  the  said  decla- 
ration alleged :  And  of  this  the  defendant  puts  himself 
upon  the  country,  etc. 

No.  135.  Plea,  to  declaration  by  tenant  in  common^  that 
defendant  did  not  have  the  care^  etc.,  to  render  account 
as  bailiff,  etc. 

(^As  in  No.  133,  ante,  to  the  asterisk:)  that  he  never 
had  the  care  and  management  of  the  parcels  of  land  in  the 
said  declaration  mentioned,  or  any  part  thereof,  to  receive 
and  take  the  profits  and  benefits  thereof,  or,  as  bailiff  of 

(/)  15  S.  &R.  153;  01.  Prec.  97-104;  Pi.  Assist.  35;   i  Freem.  Pr.  239, 


ACCOUNT.  287 


Pleas — Plene  computavit — Observations. 


the  plaintiff  of  what  he,  the  defendant,  received  more  than 
his  due  proportion  of  the  same,  to  render  a  reasonable  ac- 
count thereof  to  the  plaintifi\  and  his  share  thereof,  when 
he,  the  defendant,  should  be  thereto  requested,  in  manner 
and  form  as  the  plaintiff  has  above  in  the  said  declaration 
alleged  :  And  of  this  the  defendant  puts  himself  upon  the 
country,  etc. 

No.  136.     Plea,  to  declaration  by  tenant  tn  common,  that 
defendant  has  f idly  accounted. 

And  for  a  further  plea  in  this  behalf,  the  defendant  says, 
etc.,  etc.,  because  he  says,  that  after  the  time  during  which 
he  is  in  the  said  declaration  alleged  to  have  had  the  care 
and  management  of  the  said  parcels  of  land  in  the  said 
declaration  mentioned,  to  receive  and  take  the  profits  and 
benefits  thereof,  and,  as  bailiff  of  the  plaintiff,  to  render 
such  account  as  therein  mentioned,  to  wit,  on,  etc.,  he,  the 
defendant,  there  fully  accounted  with  the  plaintiff  concern- 
ing the  said  time  and  the  said  profits  and  benefits  in  the 
said  declaration  mentioned,  and  his  said  share  thereof: 
And  this  the  defendant  is  ready  to  verify ;  wherefore  he 
prays  judgment,  etc. 

If  pleaded  to  a  declaration  containing  several  counts, 
the  foregoing  pleas  are  of  course  to  be  limited  to  the  par- 
ticular count  or  counts  which  they  are  intended  to  answer. 
See  page  174,  ante. 

In  the  action  of  account,  there  is  no  general  issue.  The 
defendant  may  plead  infancy  ;  and  when  sued  as  bailiff  or 
receiver  in  fact,  he  may  plead  that  he  was  not  bailiff  or 
receiver ;  but  when  sued  as  tenant  in  common,  under  the 
statute,  if  the  declaration  is  properly  framed,  a  plea  (in  the 
ordinary  form)  that  he  was  not  bailiff  or  receiver  would  be 
insufiicient.  In  such  case  the  defendant  may  deny  the 
tenancy  in  common.  The  defendant  may  also  plead  that 
he  has  accounted,  or  a  release,  arbitrament,  bond  given  in 
satisfaction,  and  the  statute  of  limitations,  {q)  and  various 
other  matters.     A  plea  is  sometimes  interposed,  denying 

{q)  I  Chit.  PI.  429;  Bac.  Ab.   Acct.    E. 


288  ACCOUNT. 


Observations. 


that  there  was  any  request  to  account;  (r)  and  there  is  a 
precedent  of  a  plea  that  the  goods  bailed  were  destroyed 
by  fire,  (s) 

In  Illinois,  the  rule  laid  down  is  "to  require  the  defend- 
ant to  file  before  the  court,  in  the  first  instance,  every  de- 
fense which  shows  that  he  is  not  then  liable  to  account  to 
the  plaintifl',  whether  it  be  that  he  never  v/as  so  liable,  or 
that  some  act  has  been  done  which  has  discharged  him 
from  that  liability,  admitting  that  it  once  existed ;"  (/)  and, 
by  statute,  no  formal  pleadings  are  now  allowed  before  the 
auditors,  (w) 

The  relation  of  guardian,  executor,  administrator,  ten- 
ant in  common,  etc.,  may  be  denied  in  like  manner  as  that 
of  bailiff  or  receiver. 

The  pleader  is  referred  to  Chapter  III,  anie,  Assumpsit, 
for  replications,  pleas  in  abatement,  demurrers,  etc. 

For  an  able  and  elaborate  discussion  and  defense  of  the 
action  of  account,  see  Freeman's  Illinois  Forms,  Pleading 
and  Practice,  sections  456  to  643. 

(r)  18  Verm.  347;  21  Verm.  173.     See  12  Verm.  501. 

(5)  I  Wentw.  PI.  88. 

(t)  12  111.  117. 

(«)  Rev.  .'jtat.  (1874)  102.     Rev.  Stat.  (1877)  98. 

Note.  The  substance  of  the  statute  of  Illinois,  referred  to  in  this  chapter, 
is  retained  in  the  revision  of  1874.  The  remedy  by  this  form  of  action  is, 
however,  extended,  and  the  statute  should  be  consulted.  As  the  proceeding  by 
the  statute  is  therein  fully  pointed  out,  it  is  not  deemed  expedient  to  add  it  as 
additional  matter  to  this  work.     Rev.  Stat.  (1874)  lOo;  Rev.  Stat.  (1877)  96. 


COVENANT.  289 


Where  the  action  lies,  etc 


CHAPTER  V. 

COVENANT. 

The  action  of  covenant  lies  for  the  recovery  of 
damages  for  the  breach  of  a  covenant  or  contract  under 
seal ;  (d)  and  can  not  be  maintained  except  against  a  per- 
son who,  by  himself,  or  some  other  person  acting  on  his 
behalf,  has  executed  a  deed  under  seal,  or  who,  under 
some  very  peculiar  circumstances,  has  agreed  by  deed  to 
do  a  certain  thing,  (e)  The  action  may  be  maintained  on 
the  covenant  under  seal,  whether  the  covenant  is  express, 
or  implied  by  law  from  the  terms  of  the  deed ;  {/)  and 
implied  covenants  may  be  set  forth  in  the  declaration  in 
the  same  manner  as  if  they  were  expressed  in  the  instru- 
ment, {g) 

It  lies  upon  an  indenture  of  apprenticeship,  against  the 
master,  for  not  instructing  his  apprentice,  or  against  the 
party  who  covenants  for  the  due  service  of  such  appren- 
tice, but  it  will  not  lie  against  an  infant  apprentice.  {Ji) 

It  lies  on  articles  of  agreement  under  seal ;  or  deeds  for 
separate  maintenance  ;  and  on  covenants  in  deeds  of  con- 
veyance, etc.,  for  good  title,  etc.  ;  on  charter-parties  of 
affreightment ;  on  policies  of  insurance,  under  seal,  against 
fire,  etc.  ;  and  on  annuity  and  mortgage  deeds,  {i) 

It  will  not  lie  against  the  grantee  in  a  deed,  for  a  failure  by 
the  grantee,  after  the  accepting  of  the  deed  and  taking  pos- 
session under  it,  to  perform  the  conditions  upon  which  the 
deed,  as  therein  expressed,  was  executed.  (7) 


(<f)6Cowen,  445;   i  Penn.  55;  2  Halst.  64;  5  J.  J.  Marsh.  137;  2  Watts, 
451 ;  6  Porter,  20i ;   i  Chit.  PI.  105. 

(e)  2  Stewart,  271 ;  6Cowen,  746;  2  Pick.  451  ;  i  Chit.  PI.  11  Am.  ed.  115, 
(/)  Caine,  88;  7  Johns.  258;   i  Serg.  &  Rawle,  42. 
(^)  8  Cowen,  36;  5  Wend.  502. 
(A)  I  Chit.     PI.  105;   10  Serg.  &  Rawle,  fiS. 
(,«•)  I  Chit.  PI.  106;  35  Penn.  381 ;  28  111.  235. 
(>)  72  111.  267  ;  5  Barn.  &  Cress.  589. 
19 


2c,o  COVENANT. 


Where  the  action  lies.  etc. 


Il  is  the  peailiar  remedy  upon  contracts  under  seal, 
where  the  damages  are  unliquidated  and  depend  in  amount 
on  the  opinion  of  the  jury,  in  which  case  neither  debt  nor 
assumpsit  can  be  supported.  {J) 

Covenant,  not  debt,  lies  on  a  writing  obligatory  for  the 
payment  of  a  certain  sum  in  land-office  money,  {k)  or  in 
United  States  bank-notes,  (/)  or  in  "banking  money,"  [vi) 
or  in  "lumber."  {n) 

So  covenant,  not  debt,  lies  for  instalments  of  a  sealed 
note,  due  and  sued  for  before  the  coming  due  of  the  last 
instalment.  (<?) 

Covenant  will  not  lie  on  the  condition  in  a  title  bond  to 
convey  land,  {f)  It  will  not  lie  on  a  contract  under  seal, 
which  has  been  materially  varied  by  a  subsequent  parol 
agreement.  The  remedy  is  on  the  subsequent  agree- 
ment, {q)  Covenant  will  lie  upon  a  fire-insurance  policy 
which  has  been  renewed,  and  which  provided  that  the 
same  might  be  contmued  in  force — the  premium  being 
paid,  and  a  renewal-receipt  given,  (r) 

The  remedy  by  covenant  for  a  breach  of  contract  for  the 
sale  of  lands,  is  bungling  and  inadequate  ;  the  equity  rem- 
edy is  better,  and  ought  to  be  encouraged.  (5) 

A  plaintiff  may  sustain  covenant  on  a  sealed  instrument, 
although  it  may  be  so  defectively  executed  on  his  part  that 
only  assumpsit  can  be  maintained  against  him.  (/) 

Where  a  grantee  of  land  who  holds  under  a  deed  con- 
taining covenants  of  seisin,  warranty,  etc.,  is  obliged  to 

(J)  I  Chit.     PI.  108;  2  Blackf.  J34;  Id.  294;   i  Blackf;  216,  231. 

{k)  I  Blackf.  216. 

(/)  I  Blackf.  330,  233. 

{ni)  I  Blackf.  294. 

(«)  3  Blackf.  134. 

(o)  2  Blackf.  167. 

(/)  I  Ohio,  423;  4  Ohio,  214. 

(q)  6  Porter,  201 ;  6  Missouri,  29;  21  Picit.  417. 

{r)  28  111.  235. 

(.v)  I  Grant,  (Penn.)  83. 

(/;  I  Grant,  (Penn.)  230. 


/ 


COVENANT.  291 


Covenants  in  deeds  relating  to  lands. 


yield  up  the  premises  in  favor  of  a  prior  mortgagee,  he 
can  not  resort  to  a  court  of  chancery  for  relief  against  his 
grantor,  because  he  has  a  complete  remedy  at  law,  by  ac- 
tion of  covenant,  (u) 

Covenants  in  deeds  relating  to  lands —  What  will  con- 
stitute a  breach^  etc. — To  constitute  a  breach  of  covenant 
of  quiet  enjoyment,  there  must  be  a  union  of  acts  of  dis- 
turbance and  lawful  title.  At  least,  the  covenantee  must 
affirmatively  prove  that  his  adversary  has  a  paramount 
title,  against  which  it  would  be  unavailing  to  struggle,  {v) 

In  a  case  where  the  grantor  had  covenanted  that  the 
grantee  should  peaceably  and  quietly  hold  the  premises 
without  any  let,  suit,  etc.,  of  the  grantor,  or  anv  person 
lawfully  claiming  under  him,  and  that  they  were  free  from 
all  former  incumbrances,  of  what  nature  or  kind  soever, 
made  by  the  grantor,  it  was  held  that  a  judgment  against 
the  grantor,  outstanding  at  the  time  of  executing  the  deed, 
was  a  breach  of  the  covenant,  {w) 

A  covenant  of  seisin  is  broken,  if  at  all,  the  moment  it 
is  made,  [x)  Covenants  for  quiet  enjoyment,  and  of  gen- 
eral warranty,  are  only  broken  by  a  lawful  eviction  of  the 
grantee,  or  what  amounts  to  such  eviction,  (jy) 

When  a  grantee  in  a  deed  containing  a  covenant  of  gen- 
eral warranty  has  taken  possession,  he  can  not  maintain  an 
action  for  a  breach  of  such  covenant  until  evicted  by  legal 
proceedings,  or  until  he  yields  to  a  paramount  title,  (^z) 

A  covenant  of  seisin  only  extends  to  a  title  existino-  in  a 
third  person,  which  may  defeat  the  estate  granted  by  cov- 
enantors. It  does  not  embrace  a  title  that  may  be  already 
in  the  grantee,  {a) 


(m)  32  111.  23. 

(v)  3  Gilm.  162.  See  11  111.  229;  32  111.  23. 

(7c)  13  Johns.  105;  119  111.  312. 

{x)   109  111.  46;  99  111.  372;  27  111.  478;  32  111.  348;  40  111.  264. 

(7)  2  Johns.  I,  395;  7  Johns.  258,  376;  11  Johns.  122. 

(s)  33  111.  320;  36  111.  65  ;  Si  III.  343;  88  111.  465  ;  99  111.  405. 

(a)  II  111.  229.  See  18  Bradw.  392. 


292  COVENANT. 


Covenants  in  deeds  relating:  to  lands. 


A  covenant  of  warranty  is  prospective,  and  runs  with  the 
land  into  the  hands  of  all  those  to  whom  it  may  come  by 
purchase  or  descent,  and  is  broken  only  by  an  eviction,  or 
something  equivalent  thereto,  [d) 

The  making  of  a  deed,  with  a  covenant  of  general  war- 
ranty, is  a  perlbrmance  of  a  covenant  to  make  a  sufficient 
conveyance  of  land,  (c) 

Where  the  title  fails  to  a  part  of  the  land,  sold  for  a  gross 
sum,  the  measure  of  damages  for  a  breach  of  the  covenant 
of  warranty  is  a  sum  in  such  proportion  to  the  whole  con- 
sideration paid  as  the  value  of  that  part  of  the  land  to 
which  the  title  has  failed  bears  to  the  value  of  the  whole 
land,  and  interest  on  such  sum.  {d) 

A  covenant  to  make  a  general  warranty  deed  is  per- 
formed by  making  a  deed  containing  the  words,  "will  war- 
rant and  forever  defend  the  title,"  etc.  ;  and  such  a  covenant 
is,  in  eflect,  a  covenant  for  quiet  enjoyment,  (e) 

The  covenants  created  by  the  use  of  the  words  "  grant, 
bargain  and  sell,"  under  the  nth  section  of  chapter  24  of 
the  Revised  Statutes  of  Illinois,  are  not  operative  when  the 
grantor  has  inserted  other  covenants  in  the  deed.  This 
enactment  is  in  derogation  of  the  common  law,  and  should 
be  construed  strictly,  (jf) 

A  party  who  contracts  to  give  a  deed,  with  a  covenant 
against  incumbrances,  does  not  meet  his  obligation  by  offer- 
ing such  a  deed,  if  the  property  is  actually  incumbered,  (g") 

Where  a  covenant  is  to  be  implied  from  statutory  words, 
the  very  words  of  the  statute  must  be  used,  {/i) 

By  statute  in  Illinois,  the  words    "grant,  bargain  and 

(b)  5  Cowen,  137,  143;  27  111.  478;  33  111.  339;  51  111.  373;  54  111.  489  ;  ^i 
111,  343;  58  111.  65  ;  66  111.  393  ;  88  111.  465  ;  104  111.  iii. 

(c)  25  111.  105. 

{(i)  25  111.  262.     See  34  111.  494  ;  109  111.  46;  99  111.  372. 

{e)  25  111.  195. 

(/)  23  111.  56. 

iff)  22  111.  127;   104  111.  137  ;   3  Bradw.  550. 

(/«)  22  111.   226. 


COVENANT.  293 


Covenants  in  deeds  relating  to  lands. 


sell,"  in  a  deed,  amount  to  an  express  covenant  that  the 
grantor  was  seised  of  an  indefeasible  estate,  in  fee  simple, 
free  from  incumbrances,  done  or  suffered  from  the  grantor, 
as  also  for  quiet  enjoyment  against  the  grantor,  etc.  (/) 

A  conveyed  land  to  B,  his  unmarried  daughter,  and  to  the 
heirs  of  her  body  forever.  Before  issue  born  of  her  body,  B 
made  a  deed  purporting  to  re-convey  the  land  to  A ;  after- 
wards A  conveyed  the  land  to  C,  with  covenants  that  he  is 
seized  of  a  good,  sure,  perfect,  absolute  and  indefeasible  estate 
of  inheritance  in  the  law  in  fee  simple.  Held,  that  the  cove- 
nants were  broken  as  soon  as  it  was  made,  and  that  C  could 
sue  and  recover  for  the  breach,  notwithstanding  he  was  put 
into  possession,  {k) 

In  order  to  maintain  an  action  upon  a  covenant  of  war- 
ranty, the  party  suing,  if  he  has  neglected  to  give  notice 
to  the  warrantor  of  the  pendency  of  the  action  of  eject- 
ment, by  which  he  has  been  evicted,  must  come  prepared 
to  prove  that  the  eviction  was  by  force  of  an  adverse  or 
superior  title  ;  in  other  words,  he  must  show  that  if  the  war- 
rantor had  appeared,  and  defended  the  action  of  ejectment, 
he  could  not  have  prevented  a  recovery.  (/) 

In  an  action  on  the  covenant  of  warranty,  the  plaintiff 
must  show  an  eviction  or  ouster,  by  some  title  paramount 
to  the  grantor's,  (m)  The  entry  of  a  mortgagee,  for  fore- 
closure, in  pursuance  of  Rev.  Stat.,  C.  107,  of  Mass.,  is 
held  to  be  such  an  eviction  ;  (n)  so  if  the  grantee  yields 
without  suit,  to  one  having  a  paramount  title,  demanding 
possession,  (<?)  or  if  he  buys  in  such  paramount  title  in 
order  to  avoid  eviction  :  (p)  but  the  burden  of  the  proof 

(?)  Rev.  Stat.  (1877)  273.     See  21  III.  220 ;  23  111.  56. 
(/)  74  111.  282;  68  111.  588,  594;  71  111.  290. 
(0  15  III.  15 ;  41  111.  413 ;  48  111.  271  ;  51  111.  373. 

(m)  2  Mass.  433 ;  4  Mass.  408,  441 ;   17  Mass.  213 ;   14  Ind.  311 ;   I  Mass. 
464;  33  111.  320;  81  111.  343. 
(.«)  3  Metcalf,  Si  ;  6  Gray,  572. 
(tf)  4  Mass.  439;  33  111.  320. 
(/)  17  Mass.  386. 


294  COVENANT. 


Commencement  of  the  act  on. 


is  on   him,  to   show  that  the  title   to  which   he  yields  is 
good. {q) 

The  existence  of  an  inchoate  rifjht  of  dower  has  been 
held  to  constitute  a  breach  of  the  covenant  against  incum- 
brances, {r)  A  right  of  way  over  land  is  an  incum- 
brance, [s)  And  where  a  devisee,  holding  an  inalienable 
life  estate  in  land,  executed  a  conveyance  of  the  premises, 
in  fee,  covenanting  against  all  incumbrances,  it  was  held 
that  the  existence  of  this  life  estate,  inalienable  in  its  char- 
acter, in  the  grantor,  was  a  subsisting  incumbrance,  and 
constituted  a  breach  of  the  covenant  against  incumbrances 
immediately  upon  the  execution  of  the  deed,  {t) 

Where  there  is  an  outstanding  incumbrance  on  the  land, 
the  purchaser  need  not  wait  until  he  is  evicted,  but  may 
satisfy  the  incumbrance,  and  then  resort  to  his  action  on 
the  covenant  against  incumbrances,  {u)  And  if  the  cov- 
enantee dies  before  the  limitation  of  the  ejectment  suit,  and 
in  reviving  the  same  against  his  heirs,  one  is  omitted,  and 
the  suit  progresses  to  a  recovery  against  all  the  heirs  but 
one,  it  would  still  be  an  eviction,  (z^) 

Where  an  agreement  under  seal  contains  several  cove- 
nants, to  be  performed  by  one  party,  and  in  consideration 
of  such  covenants  the  other  party  agrees  to  perform  an  act, 
the  first  are  precedent  covenants,  and  a  performance  thereof 
must  be  averred  and  proved,  to  warrant  a  recovery  on  the 
latter  and  dependent  covenant,  (zi^) 

Commencement  of  the  action. — The  action  is  com- 
menced in  the  same   manner  as  debt  and  assumpsit.     A 

{q)  4  Mass.  349. 

(r)  22  Pick.  447.     But  see  15  111.  230. 
(5)  15  Pick.  56;  51  III.  206. 
it)  33  III.  295. 

(?0  7  Johns.  358;   16  Johns.  254;  34  111.  494;  51  111.  373;  41  111.  414;  48 
III.  271. 

(f)  41  111.  414. 
(w)  44  111.  469. 


COVENANT.  295 


PrcBcipe — Declarations — Grantee  against  grantor,  on  warranty-deed. 

bond  for  costs  is  required  in  some  instances,  as  we  have 
seen,  before  suit  is  instituted,  {x)  The  -prcBcipc  may  be  in 
tlie  following  form  : 

Praecipe  for  summons,  or  capias,  in  covenant. 

In  the Court  of  the  County  of ,  in  the  State  ot 

Illinois. 

A.  B.  ^ 
vs.     >  Covenant.     Damages  $ . 

CD.) 

The  clerk  of  the  said  court  will  issue  a  summons,  {or 
'■'-capias    ad   resfondendum^^^)    as    above,    directed   to   the 

sheriff  of  the  county  of ,  and  returnable  to  the 

term,  18 — . 

{Date.)         ^ 

E.  P.,  Attorney  for  Plaintiff. 

To  G.  H.,  Clerk,  etc. 

DECLARATIONS    IN    COVENANT. 

Ho.   137.      Grantee  against  grantor,  on   covenants  in  a 
deed  of  conveyance  of  land. 

In  the Court. 

Term,  18 — . 

State  of  Illinois, 


County  of ,        5  set.     A.  B.,  plaintiff,  by  E.  F.,  his 

attorne^y ,  complains  of  C.  D.,  defendant,  of  a  plea  of  breach 

of  covenant :  For  that  whereas  the  defendant,  on  the 

day  of  ,  in  the  year  18 — ,  in  the  county  aforesaid,  by 

his  deed  bearing  date  of  that  day,  and  now  to  the  court 
here  shown,  for  the  consideration  therein  mentioned  did 
convey  and  warrant  to  the  plaintiff,  his  heirs  or  assigns,  in 
fee  simple,  certain  real  estate  in'  the  county  aforesaid,  to 
wit,  {here  describe  the  -property) :  And  the  defendant  did 
by  the  said  deed,  for  himself  and  his  heirs  and  personal 
representatives,  covenant  with  the  plaintiff,  his  heirs  and 
assigns,  amongst  other  thi)igs,  that  at  the  time  of  the 
making  and  dcHvery  of  the  said  deed  he,  the  defendant, 
was  lawful!}'  seised  of  an  indefeasible  estate,  in  fee  simple, 
in  and  to  the  said  real  property,  and  then  had  good  right 
and  full  power  to  convey  the  same  ;  and  that  he  warranted 

(*)  Ant'.,  39-41. 


296  COVENANT. 


Declarations — Grantee  against  grantor,  on  warranty-deed. 

to  the  plaintiff,  his  heirs  and  assigns,  the  quiet  and  peace- 
able possession  of  the  said  real  estate,  and  would  defend 
the  title  thereto  against  all  persons  who  might  lawfully 
claim  the  same.  Nevertheless,  the  plaintiff  avers,  the  de- 
fendant was  not,  at  the  time  of  the  making  and  delivery  of 
the  said  deed,  lawfully  seised  of  an  indefeasible  estate,  in 
fee  simple,  in  and  to  the  said  real  property,  nor  had  he 
then  good  right  and  full  power  to  convey  the  same  :  And 
the  plaintiff  further  avers,  that  he  could  not,  by  force  of 
the  said  deed,  quietly  and  peaceably  possess  the  said  real 
estate,  nor  did  nor  would  the  defendant,  though  often  re- 
quested, defend  the  title  thereto  against  all  persons  who 
might  lawfully  claim  the  same  ;  but  on  the  contrary  thereof, 
one  G.  H.,  who  had  at  the  time  of  the  making  and  deliv- 
ery of  the  said  deed,  and  still  has,  lawful  right  and  title  to 
the  said  real  estate,  afterwards,  to  wit,  on,  etc.,  evicted  the 
plaintiff  from  the  said  real  estate,  by  due  process  of  law, 
and  entered  into  the  same,  and  kept,  and  still  keeps,  the 
plaintiff  out  of  the  possession  thereof  ( —  any  special  dam- 
ages may  be  here  alleged,  in  this  manner :  "by  reason  of 
which  premises  the  plaintiff  has  not  only  been  deprived  of 
the  said  real  estate,  and  lost  a  large  amount  of  money,  to 
wit, dollars,  by  him  expended  in  repairing  and  im- 
proving the  same,  but  has  also  been  compelled  to  pay,  and 
has  paid,  the  costs  sustained  by  the  said  G.  H.  in  prose- 
cuting a  certain  action  of  ejectment  for  the  recovery  of  the 
said  real  estate,  and  has  also  been  compelled  to  pay,  and 
has  paid,  a  large  amount,  to  wit, dollars,  in  endeav- 
oring to  defend  the  said  action  of  ejectment" — ).  And  so 
the  plaintiff  says,  that  the  defendant  has  not  kept  his  cov- 
enants aforesaid,  but  has  broken  the  same  ;  to  the  damage 

of  the  plaintiff  of dollars,  and  therefore  he  brings  his 

suit,  etc. 

(This  form  is  framed  upon  the  statutory  warranty-deed 

in  Illinois.) 

If  the  breach  of  the  covenants  in  the  deed  consists  in 
the  fact  that  the  defendant  was  not  seised,  and  had  no  right 
to  convey,  it  is  sufficient  to  simply  negative  the  cove- 
nants, (jv)     But  with  regard  to  the  covenants  for  quiet  en- 


(^)  2  Chit.  PI.  546,  c;  9  Rep.  260,  b;  see  2  Saund.  iSi,  by  c. 


COVENANT.  297 


Declarations — Grantee  against  grantor,  en  warranty-deed. 


joyment,  and  against  incumbrances,  and  to  warrant  and 
defend,  it  is  necessary  to  assign  the  breach,  by  showing 
the  interruption  or  incumbrance  complained  of,  or  by  show- 
ing an  ouster  by  an  elder  title,  (z) 

It  is  said  that  the  costs  and  counsel  fees  in  the  action  of 
ejectment  are  covered  by  the  general  claim  of  damages, 
and  that  it  is  not  necessary  to  set  them  out.  (a) 

No.    138.      Grantee    against  grantor — On   the  covenant 
against  incumbrances^  in  a  deed  of  conveyance. 

{Commence  as  in  the  last  precedent.)  For  that  whereas 
the  defendant,  on,  etc.,  in,  etc.,  by  his  deed  bearing  date 
of  that  day,  and  now  to  the  court  here  shown,  for  the  con- 
sideration therein  mentioned  did  grant,  bargain  and  sell  to 
the  plaintiff,  his  heirs  and  assigns,  a  certain  parcel  of  land 
ill  the  said  deed  particularly  described,  situate,  etc.,  to 
have  and  to  hold  the  same  to  the  plaintiff,  his  heirs  and 
assigns,  forever ;  and  the  defendant  did  by  the  said  deed 
covenant  with  the  plaintiff,  his  heirs  and  assigns,  amongst 
other  things,  that  at  the  time  of  the  ensealing  and  delivery 
of  the  said  deed  the  said  parcel  of  land  was  free  and  clear 
from  all  former  or  other  grants,  bargains,  sales,  liens,  taxes, 
assessments  and  incumbrances,  of  what  kind  or  nature 
soever :  Yet,  the  plaintiff  avers,  the  said  parcel  of  land 
was  not,  at  the  time  of  the  ensealing  and  delivery  of  the 
said  deed,  free  and  clear  from  all  former  or  other  grants, 
bargains,  sales,  liens,  taxes,  assessments  and  incumbrances, 
of  what  kind  or  nature  soever  ;  but  on  the  contrary  thereof, 
the  defendant  before  that  time,  to  wit,  on,  etc.,  by  his  deed 
of  that  date  had  mortgaged  the  said  parcel  of  land  to  one 

G.  H.,to  secure  the  payment  of dollars,  with  interest 

thereon,  etc.,  to  the  said  G.   H.,  by  the day  of,  etc.  ; 

(*)  which  said  sum  of  mone}',  with  interest  as  aforesaid,  is 
still  unpaid,  and  the  said  parcel  of  land  is  still  chargeable 
with  the  payment  thereof.  And  so  the  plaintiff  says,  that 
the  defendant  has  not  kept  his  covenant  aforesaid,  but  has 

broken  the  same  ;  to  the  damage  of  the  plaintiir  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

(*)  2  Chit.  PI.  546,  c;  Com.  Rep.  228;  2  Saund.  181,  */  2  Mass.  433. 
(a)  9  Wend.  416. 


298  COVENANT. 


Declarations — Remote  grantee  against  grantor,  on  warranty-deed. 

If  the  plaintiff  has  paid  off  the  mortgage-debt,  then,  in 
lieu  of  the  averment  following  the  asterisk  in  the  above 
form,  say,  "which  said  sum  of  money,  with  such  interest 
thereon,  being  still  unpaid,  and  the  said  deed  of  mortgage 
being  still  an  incumbrance  on  the  said  parcel  of  land,  the 
plaintiff,  on,  etc.,  to  relieve  the  said  parcel  of  land  from 
the  said  incumbrance,  there  paid  to  the  said  G.  H.  the  said 
sum  of  money,  with  interest  thereon  as  aforesaid,  whereof 
the  defendant  then  and  there  had  notice ;  and,  though  re- 
quested, the  defendant  has  not  paid  to  the  plaintiff  the  said 
sum  of  money  and  interest,  or  any  part  of  the  same." 

It  is  sufficient,  in  the  declaration,  to  say  "certain  land 
in  the  said  deed  particularly  described,"  as  in  the  above 
form,  without  any  more  precise  description,  {b) 

JVo.  139.     Second  or  remote  grantee  against  grantor^  on 
covenant  of  warranty  in  a  deed  of  conveyance. 

{Commence  as  in  No.  137.)  For  that  whereas  the  de- 
fendant, on,  etc.,  in,  etc.,  by  liis  deed  bearing  date  of  that 
day,  and  now  to  the  court  here  shown,  for  the  considera- 
tion therein  mentioned  did  grant,  bargain,  sell  and  convey 
to  one  G.  H.,  his  heirs  and  assigns,  a  certain  parcel  of 
land,  with  the  appurtenances,  situate,  etc.,  to  wit,  {here 
describe  the  property ;)  to  have  and  to  hold  the  same  to  the 
said  G.  H.,  his  heirs  and  assigns,  forever  :  And  the  de- 
fendant did  b}^  the  said  deed  covenant  with  the  said  G.  H., 
his  heirs  and  assigns,  amongst  other  things,  that  he,  the 
defendant,  would  warrant  and  forever  defend  the  said 
premises  to  the  said  G.  H.,  his  heirs  and  assigns,  against 
all  lawful  claims  whatsoever.  And  the  plaintiff  avers,  that 
afterwards,  to  wit,  on,  etc.,  the  said  G.  H.,  b}^  his  deed 
bearing  date  of  that  day,  and  now  to  the  court  here  shown, 
for  the  consideration  therein  mentiur.ed  did  grant,  bargain, 
sell  and  convey  the  premises  aforesaid  to  the  plaintiff,  to 
have  and  to  hold  the  same  to  him,  his  heirs  and  assigns, 
forever.     Yet,  the  plaintiff  avers,  the  defendant  did  not  nor 

{b)  2  Chit.  PI.  550,  //  I  Saund.  233,  «;  i  Swan's  Pr.  403,  ^ ;  14  Johns.  372, 


COVENANT 


2^9 


Declarations — Lessor  aErainst  lessee. 


would  (though  often  requested)  warrant  and  defend  the 
said  premises  to  the  plaintiff,  so  being  such  assign  of  the 
said  G.  H.  as  aforesaid,  against  all  lawful  claims  whatso- 
ever ;  but  on  the  contrar}"  thereof,  at  and  after  the  time  of 
the  ensealing  and  delivery  of  the  defendant's  said  deed, 
one  J.  K.  had  lawful  claim  and  paramount  title  to  the  said 
premises,  and  by  virtue  of  his  said  lawful  claim  and  para- 
mount title  the  plaintiff  afterwards,  to  wit,  on,  etc.,  was 
evicted  from  the  said  premises,  by  due  process  of  law,  and 
is  still  kept  out  of  the  possession  of  the  same.  And  so  the 
plaintiff  says,  that  the  defendant  has  not  kept  his  covenant 
aforesaid,  but  has  broken  the  same  ;  to  the  damage  of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc.  {See  No.  i^Hi  ^'^'^^•,  for  averment  of  special  dam- 
age.) 

The  covenant  of  warranty  is  prospective,  and  runs 
with  the  land  to  all  those  to  whom  it  may  come  by  pur- 
chase or  descent.  But  the  covenants  of  seisin  and  power 
to  sell  are  in  froesenti,  and  if  the  grantor  has  no  title  at  the 
time  of  making  them,  they  are  broken  as  soon  as  made  ; 
and  they  then  become  a  mere  chose  in  action,  not  assign- 
able so  as  to  enable  the  assignee  to  sue  thereon  at  law,  in 
his  own  name,  (c) 

No.  140.      On  a  covenant,  in  a  lease,  to  -pay  rent. 

{Commence  as  in  No.  137,  ante.)  For  that  whereas  on, 
etc.,  in,  etc.,  by  a  certain  indenture  then  and  there  made 
between  the  plaintiff,  of  the  one  part,  and  the  defendant, 
of  the  other  part,  and  bearing  date  of  that  day,  {the  coun- 
terpart of  which  said  indenture  the  plaintiff  now  brings 
here  into  court,)  the  plaintiff  did  demise  and  to  farm  let 
unto    the    defendant,    his    executors,    administrators    and 

(c)  27  111.  478.  See  33  111.  339  ;  51  111.  373;  54  111.  489;  10  Wend.  iSo;  5 
Cow,  137,  143;  89  111.  412;  104  111.  Ill,  160. 


300  COVENANT. 


Declarations — Apprentice  against  master,  on  indenture. 

assigns,  a  certain  parcel  of  land  in  the  county  aforesaid, 
to  wit,  {here  describe  the  property ;)  to  have  and  to  hold 
the  same  to  the  defendant,  his  executors,  administrators 
and  assigns,  from,  etc.,  to,  etc.  ;  yielding  and  paying 
therefor  yearly  and  every  year,  to  the  plaintiff',  his  heirs  or 
assigns,  the  clear  yearly  rent  or  sum  of dollars,  pay- 
able quarterly,  to  wit,  on,  etc.,  in  each  and  every  year  : 
And  the  defendant  did  thereby,  for  himself,  his  executors, 
administrators  and  assigns,  covenant  with  the  plaintiff,  his 
heirs  and  assigns,  amongst  other  things,  that  he,  the  de- 
fendant, would  well  and  truly  pay,  or  cause  to  be  paid,  to 
the  plaintiff,  his  heirs  or  assigns,  the  said  yearly  rent  or 
sum  of dollars,  at  the  several  days  and  times  afore- 
said. Yet,  the  plaintiff  avers,  after  the  making  of  the  said 
indenture,  and  during  the  said  term  thereby  granted,  to 

wit,  on,  etc.,  a  large  sum  of  money,  to  wit, dollars, 

of  the  rent  aforesaid,  for years  and  a  half  of  the  said 

term,  became  and  was,  and  still  is,  in  arrear  and  unpaid 
to  the  plaintiff,  contrary  to  the  tenor  and  effect  of  the  said 
indenture,  etc.  And  so  the  plaintiff  says,  that  the  defend- 
ant has  not  kept  his  covenant  aforesaid,  but  has  broken  the 

same  ;  to  the  damage  of  the  plaintiff  of dollars,  and 

therefore  he  brings  his  suit,  etc. 
146 

If  both  parts  of  the  deed  are  originals,  that  is,  signed  by 
all  the  contracting  parties,  instead  of  "  counterpart,"  in  the 
j)rq/ert,  say  '■^  one  part  of  which  said  indenture,"  etc. 
In  Illinois,  by  statute,  frofert  is  unnecessary,  {d) 
An  allegation  that  a  party  covenanted  "by  indenture" 
imports  that  the  covenant  was  under  seal,  {e) 

JVo.  141.     Apprentice  against  master,  for  breach  of  cov- 
enants in  indenture. 

{^Commence  as  in  No.  137,  ante.)  For  that  whereas  on, 
etc.,  in,  etc.,  by  a  certain  indenture  then  and  there  made 
between  the  plaintiff,  (by  and  with  the  consent  of  G.  H., 
his  father, )of  the  one  part,  and  the  defendant,  of  the  other 
part,  and  bearing  date  of  that  day,  (one  part  of  which  said 
indenture,  sealed  with  the  seals  of  the  plaintiff,  the  said 


{d)  Rev.  Stat.  (1874)  777  J  Rev.  Stat.  (1877)736. 
\e)  4  Hurl.  &  Nor.  i68. 


COVENANT.  •  301 


Declarations — Apprentice  against  master,  on  indenture. 

G  .  H.,  and  the  defendant,  is  now  to  the  court  here  shown, 
the  plaintiff  did  place  and  bind  himself  apprentice  to  the 
defendant,  to  learn  his  art  and  calling  of  a  blacksmith 
with  him,  and  to  remain  with  and  serve  him  from  the  said 
day  of  the  date  of  the  said  indenture  until  the  defendant 
should  attain  the  age  of  twenty-one  years,  to  wit,  until  the 

day  of,  etc.  :  And  the  defendant,  for  the  consideration 

therein  mentioned,  thereby  covenanted  with  the  plaintiff 
to  instruct  him,  or  cause  him  to  be  instructed,  in  the  art 
and  calling  of  a  blacksmith,  which  the  defendant  then 
used,  and  to  find  and  allow  to  the  plaintiff  good  and  suffi- 
cient meat,  drink,  lodging,  washing,  and  apparel,  both 
linen  and  woolen,  and  all  other  necessaries,  both  in  sick- 
ness and  in  health,  during  the  said  term  of  apprenticeship  ; 
and  to  cause  the  plaintiff,  within  the  said  term,  to  be  taught 
to  read  and  write,  and  the  ground  rules  of  arithmetic ;  and 
at  the  expiration  of  the  said  term  to  give  to  the  plaintiff  a 
new  bible,  and  two  new  suits  of  clothes  suitable  to  his  con- 
dition in  life  :  As  by  the  said  indenture,  reference  being 
thereto  had,  will  more  fully  appear  :  In  pursuance  of  which 
said  indenture,  the  plaintiff,  on  the  day  first  aforesaid,  there 
entered  into  the  service  of  the  defendant,  as  such  appren- 
tice as  aforesaid,  and  remained  in  such  service,  under  the 
said  indenture,  for  a  long  space  of  time,  to  wit,  from  that 
day  until  the  day  of,  etc.  ;  and  the  plaintiff  did  al- 
ways, during  that  space  of  time,  well  and  truly  keep  and 
perform  all  things  in  the  said  indenture  contained,  on  his 
part  to  be  kept  and  performed.  And  although  the  plaintitT 
was  always  there  ready  and  willing,  from  the  dav  last 
aforesaid  until  the  expiration  of  the  said  term,  to  continue 
well  and  faithfully  to  serve  the  defendant,  and  keep  and 
perform  all  things  in  the  said  indenture  contained,  on  the 
part  of  the  plaintilT  to  be  kept  and  performed,  whereof  the 
defendant  always  there  had  notice  ;  yet  the  defendant  did 
not  nor  would,  during  the  residue  of  the  said  term,  instruct 
the  plaintiff,  or  cause  him  to  be  instructed,  in  the  said  art 
and  calling  of  a  blacksmith  ;  nor  did  nor  would  the  defend- 
ant, during  the  said  residue  of  the  said  term,  find  and  allow 
to  the  plamtiff  good  and  sufficient  meat,  drink,  lodging, 
washing,  and  apparel,  both  linen  and  woolen,  and  all 
other  necessaries,  both  in  sickness  and  in  health  ;  nor  did 
nor  would  the  defendant,  during  that  tiaie,  cause  the  phiint- 
ift  to  be  taught  to  read  and  write,  and  the  ground  rules  of 


302  COVENANT. 


Declarations — On  fire-insurance  policy. 


arithmetic ;  nor  did  nor  would  tlie  defendant  give  to  him, 
the  plaintiff,  a  new  bible,  and  two  new  suits  of  clothes  suit- 
able to  his  condition  in  life,  although  the  plaintiff  did  on, 
etc.,  attain  the  age  of  twenty-one  years.  And  so  the 
plaintiff  says,  that  the  defendant  (though  often  requested 
so  to   do)   has  not  kept  his  covenants   aforesaid,  but  has 

broken  the  same  ;  to  the  damage  of  the  plaintiff  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

In  an  action  of  covenant  by  a  master  against  an  appren- 
tice, in  Illinois,  it  would  seem  that  the  declaration  should 
sufficiently  show  an  indenture  in  conformity  with  the  stat- 
ute, (which  see,)  as  all  indentures,  etc.,  for  the  taking  of 
any  apprentice,  etc.,  not  in  conformity  with  the  statute,  are 
utterly  void,  as  against  such  apprentice,  etc.  {y ) 

No.  142.      On  a  fire-insurance  policy.     (^See  JVos.  54  atid 

55,  ante.) 

{Title  0/ court,  etc.)  A.  B.,  plaintiff,  by  E.  F.,  his  at- 
torney, complains  of  the Insurance  Company,  defend- 
ant, of  a  plea  of  breach  of  covenant :  For  that  whereas  on, 
etc.,  in,  etc.,  by  a  certain  deed  or  policy  of  insurance, 
sealed  .with  the  seal  of  the  defendant,  and  bearing  date  of 
that  day,  (which  said  deed  or  policy  the  plaintiff  now  brings 
here  into  court,)  the  defendant,  for  the  consideration  therein 
mentioned,  did  covenant  with  the  plaintiff  in  the  terms  of 
the  said  deed  or  policy,  which  here  follows  in  these  words 
and  figures,  to  wit :  {Here  insert  the  policy,  verbatim.  If 
there  are  conditions,  or  proposals,  not  in  the  body  of  the 
deed,  but  referred  to  therein,  say:  "And  the  plaintiff 
avers,  that  tlie  conditions  in  the  said  deed  or  policy  men- 
tioned are  as  lollows,  that  is  to  say  :"  and  theji  insert  the 
conditions,  or  proposals,  verbatim,  or  such  parts  thereof 
as  constitute  a  condition  precedent.)  And  the  plaintiff 
further  avers,  {proceeding  as  in  No.  54,  ante,  pages  136, 
ly] ,  from  the  one  asterisk  to  the  other.)  And  the  plaintiff 
further  avers,  that  although  he  has  kept  and  performed  all 
things  in  the  said  deed  or  policy  contained  on  his  part  to 
be  kept  and  pertbrmed,  yet  the  defendant,  though  often 

(/)     Rev.  Stat.  (1874)  147;   Rev.  Stat.  (1877)  140.  See  55  111.   119. 


A 


COVENANT.  303 


Declarations — On  fire-insurance  policy — Observations. 

thereto  requested,  has  not  paid  to  the  plaintitl'  the  amount 
of  the  said  loss  and  damage  so  by  him  sustained  as  afore- 
said, or  any  part  thereof,  but  refuses  so  to  do.  And  so  the 
plaintiff  says,  that  the  defendant  has  not  kept  its  covenant 
aforesaid,  but  has  broken  the  same  ;  to  the  damage  of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

See  the  forms  of  declarations  on  policies  of  insurance,  in 
assumpsit,  ante,  pages  134-139,  and  the  observations  there 
made,  and  authorities  cited. 

Covenant  will  lie  upon  a  fire-insurance  policy  which  has 
been  renewed,  and  which  provided  that  the  same  might  be 
continued  in  force — the  premium  being  paid,  and  a  renewal- 
receipt  given,  {g) 

The  original  application  for  insurance  need  not  be  set 
out  in  a  declaration  on  the  policy.  The  insured  is  not 
bound  to  set  out  and  prove  the  truth  of  his  representations. 
It  need  not  be  averred  in  pleading  that  the  notary,  whose 
certificate  formed  a  part  of  the  preliminary  proof  of  loss, 
was  the  nearest  notary  to  the  place  of  the  fire,  if  the  cer- 
tificate is  received  without  objection ;  if  there  is  such  a 
formal  defect  in  the  proof  of  loss,  exception  should  be 
taken  in  time  for  the  assured  to  correct  it.  iji) 

Under  an  averment  of  a  total  loss,  a  party  may  recover 
for  a  partial  loss,  in  an  action  of  debt  on  an  insurance 
policy.  (/) 

Insurance  companies  have  a  right  to  limit  by  their  pol- 
icies the  time  within  which  an  action  shall  be  brought  upon 
them,  {j) 

In  an  action  on  an  insurance  policy  which  contains  a 
condition  that,.in  the  event  of  a  loss,  the  company  may,  at 
its  option,  restore  the  building,  it  is  unnecessary  to  nega- 
tive the  performance  of  this  condition  in  the  declaration. 

(^)  28  111.  235. 

(//)  2S  111.  235;  25  111.  466;  26  111.  360;  tS  111.  553. 

(/■)  25  111.  466;    13  111    676;   2  Bin  row,  ./34. 
(>)  25  111.  466. 


304  COVENANT. 


Declarations — On  fire-insurance  policy — Observations. 

It  is  a  condition  subsequent,  and  if  performed,  the  com- 
pany should  allege  it  in  defense  of  the  action,  (k) 

Where  one  of  three  partners,  who  have  effected  an  in- 
surance, afterwards,  and  before  a  loss,  assigns  his  interest 
to  the  other  two,  without  any  notice  to  or  consent  by  the 
insurers,  the  two  can  not  recover  on  the  policy,  especially 
where  they  so  declare  in  their  declaration,  and  the  policy 
forbids  such  an  assignment.  An  action  on  a  contract  must 
be  in  the  name  of  the  party  in  whom  the  legal  interest  is 
vested.  (/) 

In  an  action*  on  a  policy  of  insurance  against  fire,  the 
plaintiff  must  prove  that  he  had  an  insurable  interest  in  the 
premises,  before  he  can  recover,  (m)  The  plaintiff's  in- 
terest should  be  alleged.  («)  A  general  averment  of  in- 
terest is  sufficient,  (o) 

At  common  law,  the  assignee  of  an  insurance  policy 
could  not  maintain  an  action  thereon  in  his  own  name  ;  (^) 
and  he  can  not  do  so  in  any  case  unless  it  is  authorized  by 
the  act  incorporating  the  company,  or  by  some  general 
statute,  (g)  The  insured  must  generally  have  an  interest 
in  the  property  at  the  time  of  the  loss,  to  entitle  him  to  re- 
cover;  but  this  is  not  true  in  every  case,  for  the  insured 
may  have  assigned  his  interest  with  the  consent  of  the  in- 
surers, and  in  that  event,  the  suit  should  be  brought  in  the 
name  of  the  insured,  for  the  benefit  of  his  assignee,  (r) 
No  act  of  the  party  insured,  after  the  assignment  of  the 

(k)  27  111.  71. 

(/)  22 II!.  272;  32  ni.  221. 

(;«)  1  Gilm.  236;  22  111.  272;  4  Hill,  187;  16  Peters,  503;  3  Fairf.  44; 
26  Conn.  165. 

(«)  3  Taunt.  513. 

(o)  5  Wend.  200;   I  Hall,  84;  Conn.  490. 

(/)  32  111.  221 ;  13  Gray,  (Mass.)  79;  i  Seld.  (N.  Y.)  405;  i  Smeed,  444; 
3  Hill,  (N.  Y.)  88.     See  34  111.  46. 

(g)  4  Hill,  (N.  Y.)  187;  2  Comst.  (N.  Y.)  53;  3  Denio,  254;  10  Foster, 
(N.  H.)  231;  20  Barb.  (N.  Y.)  339;  38  N.  H.  232. 

(r)  32  111.  221 ;  16  Md.  47.     See  43  III.  327. 


COVENANT.  305 


Declarations — On  fire-insurance  policj' — Observations. 


policy  with  the  assent  of  the  insurers,  can  impair  the  rights 
of  the  assignee.  (5) 

Where  tlie  assignee  of  a  policy  has  taken  a  renewal- 
receipt  to  himself,  and  has  paid  the  new  premium,  he  can, 
in  case  of  loss,  maintain  assumpsit  in  his  own  name,  not 
on  the  policy,  but  on  the  new  and  express  promise  of  the 
insurer  to  pay  him  for  the  loss,  (t) 

Policies  of  insurance  are  within  the  purview  of  the  33rd 
section  of  the  practice-act,  and  may  be  read  in  evidence 
without  proof  of  their  execution,  unless  denied  by  plea, 
properly  verified  by  affidavit,  {ti) 

Where  by  the  charter  of  an  insurance  company,  the 
charter  itself  is  made  a  part  of  the  contract  of  insurance, 
and  the  insured  is  made  a  member  of  the  company,  he  can 
not  plead  ignorance  of  the  provisions  of  the  charter.  (^') 

It  is  impossible  to  give  a  precedent  that  will  be  applica- 
ble in  every  case,  as  the  provisions  of  insurance  policies 
are  varied.  Although  the  policy  is  often  copied  into  the 
declaration,  it  is  sufficient  to  set  forth  the  substance  of  the 
instrument,  according  to  the  legal  effect  of  the  material 
parts. of  it  on  which  the  plaintiff  intends  to  rely,  [w) 

Stipulations  and  conditions  indorsed  upon  the  policy  are 
parts  of  it,  and  must  be  set  forth  so  far  as  they  are  mate- 
rial, {x)  If  the  policy  has  been  altered,  by  consent,  after 
execution,  the  alteration  must  be  set  forth.  ( y)  If  the 
declaration  consists  of  several  counts,  the  policy  is  not  re- 
peated, but  reference  is  made  to  the  first  count  in  the  sub- 
sequent ones,  {z) 

{$)  32  111.  221;  29  Maine,  97;  i  Duer,  371;  31  Maine,  219;  3  R.  I.  102. 
(0  34  III.  46. 
(«)  I  Gilm.  236 
{v)  I  Gilm.  236. 

{iv)  6  East,  554;  4  Taunt.  285;  8  East,  7. 
•   (*)  SBing.  304;  Id.  315. 
(  v)  I  Stark.  R.  336;  2  Chit.  PI.  188. 
{z)  7  East,  505;  2  H.  Bl.  131. 

20 


So6  COVENANT. 


Defenses  to  the  action — Plea  of  non  esi/acium — Observations. 


DEFENSES  TO  THE  ACTION  OF  COVENANT. 

Picas  in  abatement. — For  pleas  in  abatement,  and  ob- 
servations thereon,  see  pleas  in  abatement  in  assumpsit, 
ante.,  chapter  III. 

Pleas  in  bar. — For  general  observations  upon  pleas  in 
bar,  see  pleas  in  bar  in  assumpsit,  ante,  chapter  III. 

No.  143.     Plea  <9/"non  est  factum. 

In  the Court. 

Term,  18 — . 

C.  D.  ^ 

ats.  >  Covenant. 
A.  B.  )  And  the  defendant,  by  G.  H.,  his  attorney, 
comes  and  defends  the  wrong  and  injur}^,  when,  etc.,  and 
says,  that  the  said  supposed  indenture  {or  "deed,"  of 
"the  said  writing")  in  the  said  declaration  mentioned  is  not 
his  deed  ;  and  of  this  he  puts  himself  upon  the  country,  etc. 

There  is,  strictly  speaking,  no  general  issue  in  covenant, 
for  the  plea  of  non  est  factum  only  puts  the  deed  in  is- 
sue, (/f)  and  admits  all  the  other  material  averments  of  the 
declaration,  {i) 

The  defendant  must  therefore  plead  specially  every  mat- 
ter which  it  would  be  necessary  to  plead  in  debt  on  a  bond 
or  other  specialty.  Under  the  plea  of  non  est  factum, 
however,  the  defendant  may  on  the  trial  avail  himself  of  a 
variance  in  the  statement  of  the  deed,  either  in  respect  of 
a  misstatement  or  of  the  omission  of  a  covenant  qualifying 
the  contract ;  and  this  although  the  defendant  has  agreed 
to  admit  on  the  trial  the  due  execution  of  the  deed ;  and 
if  the  plaintiff  omits  to  state  a  condition  precedent,  the 
defendant   may    crave   oyer,   and  set   out  the    deed,   and 

(/;)  I  Chit.  PI.  428;   I   Scam.  3S9;   17  Wend.   136;  3  Hill,   187;  9  Cow. 
307 ;  6  Ohio,  35. 

(/)  7  Cow.  474;  loWend.  202;  14  Johns.  89;  10  N.  Y.  371;  5  Ohio,  169. 


I 


COVENANT.  307 


Pleas — Payment . 


demur.  (/)  And  the  plea  of  non  est  factum  is  such  a 
general  issue  that  notice  of  set-off,  or  other  matter  in  bar, 
may  be  given  with  it.  (^) 

In  Illinois,  this  plea  does  not  put  the  plaintiff  upon  proof 
of  the   execution   of  the   deed,   unless   verified  by  affida 
vit.  (/)      See  the  form  of  the  affidavit,  ante,  No.  117. 

Where  several  defendants  unite  in  a  plea  of  non  est 
factum,  if  the  instrument  appears  to  be  the  deed  of  any 
one  of  those  so  uniting  in  the  plea,  the  issue  must  be  found 
for  the  plaintiff,  {m) 

See  the  observations  under  the  plea  of  non  est  factum, 
in  debt,  -post,  chap.  VI. 

A  plea  of  non  inf-egit  conventionem  is  bad  on  demur- 
rer, though  it  would  be  aided  after  verdict ;  {n)  at  least,  it  is 
not  a  good  plea  where  the  breach  is  in  the  negative,  {0)  if 
it  is  ever  good.  But  where  issue  is  joined  on  such  a  plea, 
the  effect  of  it  is  to  deny  every  matter  which  goes  to  con- 
stitute a  breach.  (^)     It  is  not  a  general  issue,  {q) 

No.   144.     Plea  of  payment — to  action  on  covenant  for 
-payment  of  money . 

{If  pleaded  as  a  first  plea,  coinmence  as  indicated  in 
the  observation  under  this  form;  if  as  a  second  or  subse- 
quent plea,  commence  as  follows:)  And  for  a  further  plea 
,in  this  behalf,  the  defendant  says  that  the  plaintiff  ought 
not  to  have  his  aforesaid  action  against  him,  the  defendant, 

because  he  says,  (*)  that  on  the  said day  of,  etc.,  in 

the  county  aforesaid,  he  did  pay  to  the  plaintiff  the  said 

(_/■)  I  Chit.  PI.  428.  See  Com.  Uig.  2,  V.  3,  4,  5;  11  East;  639;  1  Campb. 
70;  2  Stark.  35;  7  Dowl.  &  Ryl.  249. 

(^)  I  Ohio,  330;  6  Ohio,  35.     See  i  Scam.  389. 

(/)  Rev.  Stat.  (ICS77)  738.  See  i  Scam.  389;  43  111  134;  72  111.  340;  75 
111.  638. 

(>«)  I  How.  (U.  S.)  104. 

(w)  1  Chit.  PI.  428;  8  T.  R.  278;  I  Lev.  183-,  3  Lev.  19;  i  Sid.  289; 
Com.  Dig.  Pleader,  2,  V.  5;  7  Cov*r.  71. 

{0)  Bac.  Ab.  Cor.  L;  3  Lev.  19;  2  Taunt.  27S;  1  Aik.  150;  4  Dall.  436; 
7  Cow.  71 ;  Com.  Dig.  Pi.  2,  V.  5;  Story's  PI.  213;  2  Swan's  Pr.  750    1. 

(/)  7  Cow.  71. 

(y;  1  Aik.  170. 


3o8  COVENANT. 


Pteas  as  to  part,  etc 


sum   of  dollars,   in   the    said   indenture   mentioned  : 

And  oi  this  the  defendant  puts  himself  upon  the  countiy,  etc. 


The  commencement  of  a  ^rst  plea  Cexcept  non  est 
factuni)  is,  after  the  title  of  the  court,  etc.,  in  this  manner : 
"And  the  defendant,  by  G.  H.,  his  attorney,  comes  and 
defends  the  wrong  and  injury,  when,  etc.,  and  says  that 
the  plaintiff  ought  not  to  have  his  aforesaid  action,"  etc. 

Pleas  as  to  a  -pa^'t,  etc. — If  there  are  several  breaches 
of  covenant  assigned,  or  if  there  are  several  counts,  and 
the  plea  is  not  an  answer  to  all  of  them,  it  is  to  be  limited 
accordingly  in  the  commencement,  thus  :  "And  for  a  fur- 
ther plea  in  this  behalf,  as  to  the  supposed  breach  of  cov- 
enant first  above  assigned,  the  defendant  says,"  etc.  ;  or, 
"as  to  so  much  of  the  supposed  breach  of  covenant  5^c- 
ondly  above  assigned  as  relates  to,"  etc.  ;  or,  "as  to  the 
third  count  of  the  said  declaration  ;"  and  so  on,  restricting 
the  plea  to  the  breach  or  count,  or  part  thereof,  which  it  is 
designed  to  answer,  (See  page  174.)  A  plea  of  tender 
as  to  a  part  begins,  "And  the  defendant,  by,  etc.,  comes, 
etc.,    and   as   to  the   supposed    breach  of   covenant  first 

above  assigned,  so  far  as  the  same  relates  to dollars, 

parcel  of  the  said  sum  of dollars  in  the  said  declara- 
tion mentioned,  says  that  the  plaintiff'  ought  not  to  have 
his  aforesaid  action  against  him,  the  defendant,  to  recover 
any  greater  damages  than  the  said  sum  of,  etc.,  {the  sum 
tendered^)  on  occasion  of  the  said  supposed  breach  of  cov- 
enant in  this  behalf,  because  he  says,"  etc.  ;  and  concludes 
by  praying  "judgment  if  the  plaintiff'  ought  to  have  his 
aforesaid  action  to  recover  any  greater  damages  than  the 
said  sum  of,  etc.,  on  occasion  of  the  said  supposed  breach 
of  covenant  first  above  assigned,  etc."  And  in  any  plea 
concluding  with  a  verification,  if  the  conclusion  is  written 
out  in  full,  the  prayer  of  judgment  ought  to  correspond 
with,  and  be  founded  upon,  the  premises  in  the  plea. 

In  a  plea  of  set-off"  to  any  one  of  several  breaches,  the 


COVENANT.  309 


Pleas — To  several  counts,  etc. — Performance — To  action  by  apprentice. 

defendant  alleges  that  the  sum  due  to  him  "exceeds  the 
damages  sustained  by  the  plaintiff'  on  occasion  of  the  said 
supposed  breach  of  covenant  first  above  assigned,"  and 
offers  to  set  off'  to  the  plaintiff"  "  so  much  as  will  be  suffi- 
cient to  satisfy  the  damages  by  him  sustained  on  occasion," 
etc. 

Plea  to  several  counts  on  the  same  instrument. — Where 
there  are  several  counts  on  the  same  instrument,  and  the 
J  ilea  is  intended  to  apply  to  all  such  counts,  it  may  allege, 
ia  the  proper  case,  "that  the  supposed  indenture  in  the 
said  first  count  of  the  said  declaration  mentioned,  and  the 
supposed  indenture  in  the  said  second  count  of  the  said 
(declaration  mentioned,  were  and  are  one  and  the  same  in 
ienture,  and  not  other  or  different." 

]Vo.  145.     Plea  of  performance. 

{As  in  the  last  -precedent,  to  the  asterisk,  and  then  -pro- 
Meed:)  that  he,  the  defendant,  did  [here  state  the  perform- 
ance, in  the  words  of  the  covenant,  if  in  the  afjinnative, 
and  conclude  as  follows :)  according  to  the  form  and  effect 
(>f  the  said  indenture,  and  of  the  said  covenant  by  the  de- 
fendant in  that  behalf  made  as  aforesaid  :  And  of  this  the 
•lefendant  puts  himself  upon  the  country,  etc. 

The  plea  of  covenant  performed,  where  it  is  not  sus- 
tained, admits  nothing  more  than  the  plaintitT's  right  to 
lecover  nominal  damages,  {r) 

JVo.  146.    Plea,  to  declaration  by  apprentice  on  indenture, 
that  plaintiff  deserted  defendanfs  service. 

{First  plea,  non  est  factum  ;  second  plea  as  in  IVo.  144, 
ante,  to  the  asterisk,  and  then  proceed:)  that  after  the 
making  of  the  said  indenture,  and  before  the  expiration  of 
the  said  term  of  apprenticeship  therein  mentioned,  to  wit, 
on,  etc.,  the  plaintiff'  wrongfully,  and  without  the  license 
or  consent  of  the  defendant,  there  deserted  and  left  the 
service  of  the  defendant,  and  did  not  at  any  time  afterwards 

(r)  2  Scam.  297;  5  Wend.   113. 


3IO  COVENANT. 


Pleas — Plea    to  action  by  apprentice. 


return  thereto  :  And  the  defendant  further  says,  that  he 
did  continually,  iVom  the. making  of  the  said  indenture 
until  the  piaintifll'  so  deserted  and  left  the  service  of  tlie 
defendant  as  aforesaid,  well  and  truly  keep  and  perform 
all  things  in  the  said  indenture  contained,  on  his  part  to  be 
kept  and  performed  within  that  time  ;  and  that  during  the 
residue  of  the  said  term  he  was  ready  and  willing  to  well 
and  truly  keep  and  perform,  and  would  have  well  and  truly 
kept  and  performed,  all  things  in  the  said  indenture  con- 
tained, on  his  part  to  be  kept  and  performed  during  the  said 
residue  of  the  said  term,  if  the  plaintiff' had  not  so  deserted 
and  left,  or  had  returned  to,  the  service  of  the  defendant. 
And  this  he,  the  defendant,  is  ready  to  verify  ;  wherefore  he 
prays  judgment  if  the  plaintiff'  ought  to  have  his  aforesaid 
action,  etc. 

For  other  pleas  in  covenant,  see  the  special  pleas  in  as- 
sumpsit and  debt,  which  may  readily  be  adapted  to  this 
form  of  action.  The  plaintiff"  may,  as  we  have  seen,  plead 
noil  est  facUim,  and  give  notice  therewith  of  any  special 
matter  of  defense.  Pleas  in  covenant  so  much  depend  on 
the  particular  facts  of  each  case,  that  it  would  not  be  prac- 
ticable, in  a  concise  work  like  this, to  give  more  than  a  few 
general  forms. 

For  replications,  demurrers,  etc.,  see  the  same  subjects 
in  assumpsit,  ante,  chapter  III. 


DEBT.  311 

Where  the  action  lies,  etc. 


CHAPTER  VI. 

DEBT. 

Where  the  action  lies,  etc. — The  action  of  debt  lies 
to  recover  money  due  upon  simple  contracts,  express  or 
implied,  whether  verbal  or  written  ;  upon  contracts  under 
seal,  or  of  record;  and  upon  legal  liabilities,  (a) 

A  joint  action  of  debt  lies  against  two  persons  who  have 
bound  themselves  by  the  same  writing  to  pay  a  sum  of 
money,  the  one  with  and  the  other  without  seal,  (d) 

It  lies  on  statutes,  by  a  party  aggrieved,  (c)  or  by  a 
common  informer ;  and  whenever  the  demand  is  for  a  sum 
certain,  or  is  capable  of  being  readily  reduced  to  a  cer- 
tainty, (d) 

On  simple  contracts  and  legal  liabilities,  debt  lies  for 
money  lent,  paid,  had  and  received,  and  due  on  an  ac- 
count stated  ;  for  interest  due,  for  work  and  labor,  for  fees, 
for  goods  sold,  and  for  use  and  occupation  ;  (e)  and  it  is 
laid  down  as  a  general  rule,  that  debt  lies  upon  every  con- 
tract in  deed  or  in  law.  (_/") 

Debt  lies  upon  simple  contracts  wherever  indebitatits 
assumpsit   will  lie,    and    is    a    concurrent   remedy  there- 

(a)  I  Chit.  PI.  97;  2  Dall.   123;  i  Head,  (Tenn.)  71;  3  Sneed,  (Tenn.) 

145- 

(i)  4  Humphrey,  332  :   12  Gratt.  (Va.)  520. 

(c)  See  2  Scam.  461. 

(rf)  I  Chit.  PI.  98;    I  Peters,  147;    i   Hill,  507;  S  Leigh,  479;  3  McLean, 
150;  I  Barb.  325;  44  111.  469. 

(e)  I  Chit.  PI.  98;   I  Rawle,  135;  3  Denio,  452;   i  Hemp.  279,  290. 

(/)  I  Chit.  PI.,  II  Am.  ed.  no;   15  Wend.  220. 


;i2  DEBT. 

Where  the  action  lies,  etc. 


with  ;   ( 0-)  and  it  may  be  supported  on  a  quantum  mer- 
uit, [h) 

This  action  also  lies  to  recover  money  due  on  any  spe- 
cialty, or  contract  under  seal,  to  pay  money,  as  on  single 
bonds,  on  charter-parties,  on  policies  of  insurance  under 
seal ;  and  on  bonds  conditioned  for  the  payment  of  money, 
or  the  performance  of  any  other  act ;  it)  on  leases,  for  rent 
or  penalties  ;  on  mortgage-deeds  ;  and  on  annuity-deeds.  (/) 
Where  however  a  gross  sum  is  payable  by  instalments, 
debt  will  not  lie  until  the  last  instalment  falls  due  ;  {k) 
though  for  rent  payable  quarterly,  or  otherwise,  or  for  an 
annuit}^  or  on  a  stipulation  to  pay  a  certain  sum  on  one 
day  and  the  like  sum  on  another,  debt  lies  on  each  default ; 
and  even  where  one  £um  is  payable  by  instalments,  if  the 
payment  is  secured  by  a  penalty,  debt  is  sustainable  for 
such  penalty  on  any  default.  (/) 

The  statute  of  wills,  in  Illinois,  authorizes  several  suc- 
cessive suits  on  an  executor's  or  administrator's  bond,  for 
the  use  of  any  person  or  persons  injured,  until  the  whole 
penalty  shall  be  recovered,  {m) 

Debt  is  the  proper  form  of  action  for  a  violation  of  an 
ordinance  of  an  incorporated  town,  in) 

It  lies  upon  a  bond  made  to  a  coroner  in  an  action  of 
replevin,  {o) 

It  always  lies  on  a  judgment  of  a  court  of  record ;  and 
may  be  brought  although  the  plaintiff,  at  the  time  of  bring- 
ing the  suit,  may  be  entitled  to  an  execution  on  his  judg- 
ment, [oo) 

(^)4  Gilm.  193;   I  Pet.  C.  C.  R.  145;  8  Pick.  178;   7°  111.  549- 

{h)  8  Pick.  178;   iS  Pick.  229,  231 ;  10  Yerger,  452 ;  i  Kelly,  261 ;  i  Chit. 

PI.  97-       * 

(«■)  I  Chit.  PI.  99.     See  86  111.  185. 

(;■)  Ibid. ;  44  111.   460- 

{k)  2  Saund.  306,  n.  6;   i  Chit.  PI.  102.     See  44  111.  469 

(/)  I  Chit.  PI.  102;  I  Binn.  152. 

{in)  Rev.  Stat.  (1877)  104;  24  111.  324. 

(w)  1  Scam.  290;  36  111.  507. 

(o)  2  Scam.  6.     See  35  111-  2S2. 

{00)  3  Scam.  541 ;  12  Cal.  n  ;  43  111-  19*). 


DEBT.  313 

Where  the  action  lies,  etc. 

An  action  of  debt  may  be  brought  on  an  appeal-bond  by 
the  appellee,  the  moment  judgment  is  rendered  in  the  cause 
appealed,  unless  the  money  is  paid  immediately.  (/) 

Where  the  property  of  another  has  been  taken  and  con- 
verted, the  tort  may  be  waived,  and  assumpsit  or  debt 
brought  for  its  value,  {q) 

Where  one  party  takes  undue  advantage  of  another,  and 
compels  him  to  pay  money  contrar}'  to  equity  and  good 
conscience,  he  may  recover  it  again  in  an  action  of 
debt,  {r) 

It  lies  on  a  decree  in  chancery  which  has  the  effect  of  a 
judgment  at  law,  (5)  such  as  a  decree  for  a  sum  of  money 
as  alimony,  (^)  or  a  decree  fixing  the  balance  of  an  ac- 
count between  partners ;  {u)  though  there  is  some  conflict 
of  authorities  on  this  question,  {v)  It  may  be  maintained 
on  a  decree  of  a  foreign  court  which  finds  a  sum  of  money 
to  be  due,  and  directs  its  payment ;  but  not  on  a  decree 
for  the  performance  of  acts  other  than  the  payment  of 
money,  {w) 

Debt  lies  on  the  judgment  of  a  justice  of  the  peace  of 
another  state,  {x) 

It  has  been  held  that  this  action  may  be  maintained  by 
the  assignee  against  the  maker  of  a  promissory  note  ;  {y) 
but  in  Hilborn  v.  Artiis,  3  Scam.  344,  a  doubt  was  ex- 
pressed whether  this  can  be  done. 

An  action  of  debt  lies  upon  an  instrument  under  seal  for 
the  payment  of  a  sum  certain,  to  a  specified  person,  and  at 

(/)  3  Scam.  612. 

{q)  3  Sneed,  (Tenn.)  454.     See  i  Conn.  132;  3  Cow.  393. 
{r)  5  Gilm.  513. 

(s)  J.  J.  Marsh,  600;  2  Blackf.  31 ;  25  111.  95. 
{t)  15  Mass.  196.     See  2  Blackf.  ^z;  4  Blackf.  52. 
(«)  13  Vermont,  231. 
(v)  25  111.  95.     See  8  Wheat.  697. 
(w)  25  111.  95 ;  3  Caine,  22 ;  9  Serg.  &  Rawle,  252. 
(«)  I  Blackf.  16;  7  Wend.  435;  6  Wend.  267,  438.     See  i  Scam.  558. 
(j)  1  Blackf.  378;  36  Penn.  538.    See  Gross'  Stat.   461;   i   Swan's  Pr. 
37S;  2  Chit.  PI.  388,  n. 


314  DEBT. 

Where  the  action  lies,  etc. 

a  certain  time,  without  alleging  or  proving  the  considera- 
tion for  which,  or  the  transaction  in  which,  the  instrument 
was  made,  although  it  contains  a  statement  or  explanation 
of  such  consideration  or  transaction.  Such  statement  does 
not  change  the  character  of  the  instrument,  (z) 
^  Debt  lies  also  on  an  award  for  the  payment  of  money,  {a) 
and  that  without  regard  to  the  penalty  of  the  bond  ;  {d)  and 
on  by-laws,  for  fines  and  amercements,  {c) 

Debt  can  not  be  sustained  in  any  case,  unless  the  demand 
is  for  a  sum  certain,  or  for  a  pecuniary  demand  which  can 
readily  be  reduced  to  a  certainty,  {d ) 

An  action  of  debt  will  not  lie  upon  an  obligation  which 
says  "  due  one  thousand  and  fifty  dollars,  payable  in  county 
orders,  of  such  size  and  dimensions  as  the  promiser  ma}?^  be 
able  to  furnish  ;"  such  an  obligation  not  being  for  the  money 
named,  but  for  the  thing  to  be  furnished,  (e) 

A  joint  action  of  debt  will  not  lie  against  a  lessee,  in  a 
lease  under  seal,  and  a  surety  who  by  a  writing,  not  sealed, 
on  the  back  of  the  lease,  becomes  surety  for  the  payment 
of  the  rent.  (/") 

Where  a  vendee  sued  a  vendor  of  land,  in  debt,  for  a 
part  of  the  purchase-money  paid,  declaring  speciall}^  on 
the  contract  of  sale,  which  was  under  seal,  and  alleging 
that  the  vendor  could  not  convey,  by  reason  of  incum- 
brances, it  was  held  that  the  action  would  not  lie,  but  that 
the  remedy  was  in  covenant,  (g-) 

Where  a  constable  has  collected  money  otherwise  than 

(^)  16  111.  79. 

(a)  8  Cowen,  235;  11  Cush.  (Mass.)  429;   i  Chit.  PI.  99. 

(d)  7  Cowen,  522. 

(c)  14  Johns.  479;  2  Hall,  471;   i  Chit.  PI.  99. 

{d)  9Missouri,  218;   I  Chit.  PI.  102;  29  111.   245;   i  Dutch.  (N.J.)  509; 
50  111.  436- 

(e)  29  111.  245. 
(/)  16  111.  485. 
(^)  50  111-  436. 


DEBT.  315 

Actions  on  statutes. 


by  virtue  of  process,  an  action  will  not  lie  on  his  bond  for 
a  lailure  to  pay  over  the  money,  {h) 

Where  a  person  executes  a  bond  as  surety  with  another, 
whose  name  at  the  time  appears  signed  to  the  bond,  but 
whose  signature  has  been  forged,  the  person  so  executing 
such  bond  will  be  liable  thereon.  (J) 

Actions  of  debt  on  statutes,  in  Illinois. — The  statute  of  Illi- 
nois provides  that  any  person  who  shall  cut,  fell,  box,  bore 
or  destroy,  or  carry  away  any  of  the  trees  or  saplings  there- 
in enumerated  without  permission  of  the  owner  of  the  land, 
shall  forfeit  and  pay  for  each  tree  or  sapling  so  cut,  etc.,  the 
sum  of  eight  dollars ;  to  be  recovered  either  by  an  action  of 
debt,  in  the  name  and  for  the  use  of  the  owner  of  the  land, 
or  by  action  qui  tani^  in  the  name  of  any  person  who  will  first 
sue' for  and  recover  the  same;  the  one-half  for  the  use  of  the 
person  so  suing,  and  the  other  half  for  the  use  of  the  owner 
of  the  land,  {k) 

If  any  drover  drives  off,  or  knowingly  and  willingly  per- 
mits to  be  driven  off,  from  the  premises  of  any  citizen,  or 
from  the  range  in  which  the  stock  of  any  such  cidzen  may 
run,  to  any  distance  exceeding  five  miles  from  such  prem- 
ises or  range,  any  horses,  mules,  neat  cattle,  hogs  or  sheep, 
belonging  to  such  citizen,  or  permits  any  such  stock  to  re- 
main with  his  drove  for  a  longer  period  than  two  days  and 
nights  at  any  one  time,  the  owner  may  bring  an  action  of 
debt,  and  recover  double  the  value  of  such  stock  so  driven 
away  or  detained.  (/) 

If  any  engineer  on  any  railroad  shall  start  his  train,  at 
any  station,  etc.,  without  ringing  the  bell  or  sounding  the 
whistle  a  reasonable  time  before  starting,  he  shall  forfeit  the 
sum  of  not  less  than  ^10,  nor  more  than  ^100,  to  be  recovered 

(70  27  111.  39. 

(z)  89  111.  243;  85  111.  218;   51  Maine,  509. 

(X-)  Rev.  Stat.  (1S77)  999;  23  111.  397  ;  35  ^I'^s-  231. 

(/)  Rev.  Stat.  (1874)  441  j  Rev.  Stat.  (1877)  435. 


3i6  DEBT. 

Commencement  of  the  action. 

in  an  action  of  debt  in  the  name  of  the  People  of  the  State 
of  Illinois,  and  such  corporation  shall  also  forfeit  a  like  sum, 
to  be  recovered  in  the  same  manner,  [in) 

Every  engineer  and  the  railroad  corporation  failing  to  come 
to  a  full  stop  at  a  distance  of  not  less  than  200  feet,  nor  more 
than  800  feet  from  the  draw  in  every  bridge  which  crosses 
any  stream  or  harbor  by  swing  or  draw  bridge,  or  from  the 
point  of  intersection  or  crossing  of  another  railroad,  and  in 
j^lain  sight  of  the  same,  before  such  draw,  intersection  or 
crossing  is  passed  by  any  such  train,  shall,  for  each  offense, 
forfeit  5100,  to  be  recovered  in  an  action  of  debt,  in  the  name 
of  the  People  of  the  State  of  Illinois,  or  by  any  person  who  may 
sue  for  the  same,  {n) 

If  any  public  officer,  having  in  custody  any  person  re- 
strained of  his  liberty,  etc.,  refuses  (except  in  case  of  immi- 
nent danger  of  escape,)  to  admit  any  practicing  attorney, 
whom  such  person  may  desire  to  see  or  consult,  to  see  and 
consult  such  person  alone  and  in  private,  at  the  jail  or 
other  place  of  confinement,  such  officer  is  liable  to  forfeit 
and  pay  to  the  person  aggrieved  one  hundred  dollars,  to 
be  recovered  by  an  action  of  debt,  (o) 

The  statutes  provide  for  numerous  qui  tarn  actions,  not 
particularly  referred  to  here,  most  of  which  are  usually 
prosecuted  before  a  justice  of  the  peace,  as  the  penalties 
come  within  his  jurisdiction. 

If  a  statute  prohibits  the  doing  of  an  act  under  a  penalty, 
and  does  not  prescribe  any  mode  of  recovery,  an  action  of 
debt  lies.  (^) 

Commencement  of  the  action. — It  has  already  been 
shown  in  what  cases  security  for  costs  is  required  to  be 
filed  before  the  commencement  of  an  action,  [ante^  pages 

m)  Rev.  Stat.  (1874)  809;   Rev.  Stat.  (1S77)  77i- 
(«)  Id.       ■ 

\o)  Rev.  Stat.  (1874)  387;  Rev.  Stat.  (1877)  iZt,. 
(/)   I  Head,  (Tenn.)  71 ;   15  111.  39. 


DEBT.  317 

Pi-cecipe — Declaration. 


39—42).     The  pmcipe  for  a  summons,  or  capias  ad  re- 
spondendum, may  be  in  the  following  form  . 

Prascipe_/br  summons,  or  capias,  in  debt. 

In  the Court  of  the  County  of ,  in  the  State  of 

Illinois. 

A.  B.  ^ 
vs.     >  Debt. 

C.  D.  )Debt$ .     Damages  % . 

The  clerk  of  the  said  court  will  issue  a  summons,  (or, 
ca-pias  ad  respondendum,)  as  above,  directed  to  the  sheriff 

of  the   county  of  ,  and   returnable  to  the  term, 

18—. 

{Date. ) 

E.  F.,  Attorney  for  Plaintiff. 

To  J.  K.,  Clerk,  etc. 

In  debt  qui  tam,  omit  the  damages.  The  sum  demanded 
as  the  debt  should  be  specified  in  the  prcecipe,  as  a  sum- 
mons in  debt  is  defective  if  it  does  not  demand  a  particular 
sum  as  the  debt,  {q) 

The  declaration. — As  in  other  actions,  the  declara- 
tion ought  to  pursue  the  writ,  as  to  the  character  of  the 
action,  the  parties,  and  the  extent  of  the  demand,  (r) 

Debt  lies  on  a  special  contract  to  pay  money  ;  and  if 
such  contract  is  specially  declared  upon,  and  is  not  under 
seal,  so  that  a  consideration  is  necessary,  the  declaration 
should  show  such  consideration,  and  may  in  general  be 
framed  like  a  declaration  in  assumpsit,  with  this  exception, 
that  it  should  be  alleged  that  the  defendant  "agreed,"  not 
that  he  "promised"  to  pay.  (/)  A  count  commencing  and 
concluding  in  debt,  is  not  however  to  be  .reH:arded  as  a 
count  in  assumpsit  merely  because  the  word  "  promised" 
is  used  instead  of  "agreed."  {u) 

(?)  II  111-  573- 

(r)  n  111.  573;  17  111.  199,  529. 

(/)  2  McLean,  363;   i  Chit.  PI.    11  Am.  ed.  362. 

(«)  5  Gilm.  75,  101 ;   16  111.  105 ;  2  Bos.  &  Pul.  78;   I  Blackf.  503. 


3i8  DEBT. 

Declaration. 


In  declaring  upon  a  writing  not  under  seal,  no  profert  is 
made  ;  (v)  and  in  Illinois,  by  statute,  it  is  not  necessary,  in 
any  pleading,  to  make  profert  of  the  instrument  alleged,  (w) 
Oyer  can  not  be  claimed  of  a  deed  which  appears  from  the 
pleading  to  be  lost,  or  in  the  possession  of  the  adverse 
party,  [x) 

A  count  on  a  specialty  and  one  on  simple  contract  may 
be  joined  in  the  same  declaration,  (y)  But  counts  in  debt 
and  in  assumpsit  can  not  be  joined,  (z) 

In  a  declaration  on  a  judgment  of  a  justice  of  the  peace 
in  another  state,  the  jurisdiction  of  the  justice  must  be 
shown.  («) 

In  a  suit  on  a  bond  given  by  a  deputy  sheriff  for  the 
faithful  performance  of  the  duties  of  his  office,  the  plaintiff 
must  assign  breaches,  and  can  not,  without  such  assign- 
ment, take  a  verdict  for  even  nominal  damages,  (d) 

A  general  assignment  of  a  breach,  which  is  sufficient  to 
show  on  what  account  the  suit  is  brought,  is  sufficient,  (c) 

In  an  action  upon  a  penal  bond,  in  Illinois,  the  breaches 
are  to  be  assigned  in  the  declaration,  and  as  many  breaches 
may  be  assigned  in  one  count  as  may  be  deemed  neces- 
sary, or  the  declaration  may  contain  as  many  counts  as 
there  are  breaches  of  the  bond.  In  the  former  case,  each 
breach  answers  the  place  of  a  count,  and  is  subject  to  a 
demurrer,  which  may  be  sustained  as  to  some  and  over- 
ruled as  to  others,  the  same  as  if  the  breaches  were  set 
forth  in  separate  counts,  {d) 

{v)  I  Chit.  PI.  313. 

(w)   Rev.  Stat.  (1874)  777;  Rev.  Stat.  (1877)  736. 

I^x)  I  Chit.    PI.    314;  2    Root,    126,   482;   I   Yeates,  2;    3    Bibb,  8;    A.    K. 
Marsh.  93. 

{y)   I  Chit.  PI.  181  ;   13  Johns.  462;  3  Blackf.  167. 
{z)   19  111.  273. 

(a)  7  V^end.  435  ;   i  Scam.  558 ;  4  Parker,  (N.  Y.)  226. 
{d)   II  Wend.  30. 

(c)  12  111.  15;  5  Johns.  168. 

(d)  28  111.  240.  See  27  111.  478  ;  11  Bradw.  370 ;  8  Bradw.  279;  9  Bradu'. 
71;  15  Bradw.  189. 


DEBT.  319 

Declaration. 


Assignments  of  breaches  of  the  condition  of  a  bond  must 
be  specific  enough  to  inform  the  defendants  of  what  par- 
ticular acts  they  have  been  guiUy.  (e) 

In  a  declaration  on  a  bond  conditioned  that  the  defend- 
ant would  not  suffer  any  unlawful  assemblies  about  his 
house,  an  assignment  of  a  breach  that  he  did  suffer  un- 
lawful assemblies  in  and  about  his  house  during  the  con- 
tinuance of  his  license  is  not  sufficient,  (y")  So,  in  a  suit 
on  a  constable's  bond,  the  declaration  should  set  out  the 
particular  breach  of  duty  in  the  officer.  ( g-) 

It  is  not  necessary  for  the  plaintiff,  in  declaring  in  debt 
on  a  recognizance  of  bail,  to  allege  that  z.ji.  fa.  had  been 
issued  against  the  principal  before  the  return  of  the  ca. 
sa.  {h) 

A  breach  of  the  condition  of  a  bond  "  to  free  the  land 
from  all  legal  incumbrances,  either  by  deed  or  mortgage, 
now  in  existence,  and  binding  on  the  premises,  by  the  20th 
of  February,"  is  not  well  assigned  by  following  and  nega- 
tiving the  words  of  the  condition,  and  such  assignment 
does  not  necessarily  amount  to  a  breach.  The  plaintiff 
ought  to  show  some  incumbrance  existing  at  the  date  of 
the  bond  and  on  the  20th  of  February,  or  at  the  commence- 
ment of  the  suit,  ij) 

In  an  action  on  a  bond  which  was  conditioned  for  the 
payment  of  a  certain  sum  whenever  the  obligor  should  be 
released  from  another  penal  bond  previousl}^  executed,  it 
was  not  averred  that  the  obligor  had  been  released  or  dis- 
charged.    The  declaration  was  held  bad.  {j) 

In  a  suit  on  an  official  bond,  an  assignment  of  breaches 
in  the  declaration  is  held  necessary.  (^)     Where  the  con- 


(e)  6  Ohio,  150,  153. 

{/)  6  Blackf.  42S. 

(^)6B!ackf.  32;  8  Blackf.  71 

i^h)  16  Johns.  117. 

(0  II  Johns.  6. 

(/)  I  Gilm.  i;    17  Ohio,  554. 

(-i)  6  Ohio,  150,  153;  6  Blackf.  428. 


320  DEBl- 

Declaration. 


dition  of  a  bond  may  be  broken  by  the  omission  or  com- 
mission of  a  single  act,  the  breach  may  be  assigned  in  the 
words  of  the  condition,  but  if  it  ma}^  be  broken  in  various 
ways,  the  assignment  should  state  the  particular  mode  of 
the  breach.  (/) 

•In  debt  on  a  bond,  given  on  appeal  of  an  action  of 
forcible  entry  and  detainer  to  the  Supreme  Court,  and  con- 
ditioned to  pay  the  value  of  the  use  and  occupation  of  the 
premises,  it  is  not  necessary  to  aver  in  the  declaration  that 
the  defendant  had  enjoyed  the  use  and  occupation  of  the 
premises.  In  such  case,  it  is  only  necessary  to  allege,  in 
assigning  breaches  of  the  bond,  that  the  plaintiff' had  been 
deprived  of  the  possession  during  the  pendency  of  the 
appeal,  {m) 

\Vhere  a  penal  bond  is  executed  by  two  parties,  in  which 
they  mutually  bind  themselves  to  desist  from  all  interfer- 
ence with  a  certain  tract  of  land,  to  which  each  has  previ- 
ously set  up  a  claim,  until  the  merits  of  their  respective 
claims  shall  be  settled  or  adjusted,  it  seems  an  action  is 
maintainable  for  a  breach  of  the  condition,  {n) 

Where  a  declaration  describes  an  appeal-bond  to  be  pay- 
able on  demand,  and  then  proceeds  to  set  out  the  condition 
at  large,  so  that  the  true  character  of  the  bond  appears,  the 
bond  ma)-  be  offered  in  evidence,  although  it  is  not  payable 
on  demand,  but  on  the  affirmance  of  the  judgment,  {o) 

A  declaration  upon  an  appeal-bond  is  sufficient,  which 
avers  that  the  appeal  was  not  prosecuted,  and  that  the  judg- 
ment appealed  from  was  not  paid,  and  that  such  judgment 
was  affirmed.  It  need  not  aver  that  the  order  dismissing 
the  appeal  was  filed  in  the  court  from  which  the  appeal  was 
taken.     An  averment  that  the  judgment  appealed  from  was 


(/)  12  111.  267;  6  Blackf.  32;  8  Blackf.  71. 
\m)  48  111.  445 
(„)  3  Gilm.  475. 
(0)  14  111.  277. 


DEBT.  321 

Declarations — Common  itidebitatus  count. 

final,  or  that  the  judge  of  the  court  from  which  the  appeal 
was  taken  approved  the  bond,  is  unnecessar3^  (^^ 

PRECEDENTS  OF  DECLARATIONS  IN  DEBT. 

Isfo.  147.      Common  indebitatus  couni. 

In  the Court. 

Term,  iS — . 

State  of  Illinois,  )  ' 

County  of ,        5  set.     A.  B.,  plaintiff,  by  E.  F.,  his 

attorney,  complains  ot  C.  D.,  defendant,  of  a  plea  of  debt: 

For  that  whereas  the  defendant,  on  the day  of  , 

in  the  year  18 — ,  in  the  county  aforesaid,  was  indebted  to 

the  plaintiff  in  the  sum  of dollars,  for  {here  state  the 

Subject-matter  of  the  debt,  precisely  as  in  assumpsit,  ante, 
pages  6^-6y,  and  then  proeeed:)  which  said  sum  of  money 
was  to  be  paid  to  the  plaintiff  by  the  defendant,  when  he 
should  be  thereto  requested  :  Yet  the  defendant,  though 
requested,  has  not  paid  to  the  plaintiff  the  said  sum  of 
money,  or  any  part  thereof,  but  refuses  so  to  do ;  to  the 

damage  of  the  plaintiff  of dollars,  and  theretore  he 

brings  his  suit,  etc. 

If  there  are  several  counts,  the  breach  should  be  as  fol- 
lows : 

Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  several  sums  of  money  m  the  several  counts 

above    specified,  together  amounting  to  the  sum  of 

dollars,  or  any  part  thereof,  but  refuses  so  to  do ;  to  the 
damage,  etc. 

It  has  been  usual,  in  the  commencement  of  the  declara- 
tion, to  say  that  the  plaintiff  complains  of  the  defendant 

"of  a  plea  that  he  render  to  the  plaintiff  the  sum  of 

dollars,  which  he  owes  to  and  unjustly  detains  from  him  ;" 
and  this  v.-as  to  be  the  aggregate  of  all  the  sums  demanded 
in  the  different  counts,  {q)     Whether  strictly  necessary  or 

(/)  22  ill.  91. 

{_q)  I  Chit.  PI.  309,  325  a;  2  Id.  3S5-3S7 ;  4  Wend.  387. 
21 


DEBT. 

Declarations — Remarks. 


II 


not,  ,{r)  it  would  seem  to  be  well  to  state  the  aggregate  of 
the  sums  claimed  in  the  several  counts  ;  and  this  should  be 
tlae  debt  demanded  by  the  summons,  which  must  demand 
a  particular  sum  as  the  debt;  (s)  but  this  statement  of  the 
debt  may  be  made  in  the  breach,  as  in  the  forms  here 
o'iven . 

"The  debt  demanded  should  regularly  be  the  aggregate 
of  all  the  sums  alleged  to  be  due  in  the  different  counts  ; 
but  a  mistake  in  this  respect,  whether  more  or  less,  will 
not  be  a  cause  of  demurrer,  nor  is  it  necessary  to  prove 
that  the  debt  amounted  to  precisely  the  sum  stated  to  be 
due."  (/) 

Where  the  form  used  in  the  commencement  is,  "of  a 
plea  that  he  render,"  etc.,  the  words  ozces  to  and  (the  debet) 
should  regularly  be  omitted  in  actions  by  or  against  exec- 
utors or  administrators,  who  in  general  are  to  be  sued  in 
the  dctinet  ovA.y.  {ii)  But  it  seems  this  distinction  is  no 
longer  strictly  observed  ;  {v)  and  where  the  action  is  simply 
described  in  the  commencement  as  "  a  plea  of  debt,"  which 
is  sufKcient,  [zu)  the  distinction  is  of  course  not  made. 

It  has  also  been  usual,  in  each  count,  after  setting  forth 
the  subject-matter  of  the  debt,  etc.,  to  say,  "whereby,  and 
by  reason  of  the  last-mentioned  sum  of  money  being  and 
remaining  unpaid,  an  action  hath  accrued  to  the  plaintiff 
to  demand  and-  have  of  the  defendant  the  said  sum  of 
money  last  mentioned,  parcel  {or  "other  parcel,"  or  "res- 
idue") of  the  said  sum  of  dollars  above  demanded;" 

but  this  allegation  is  unnecessary,  and  the  usual  breach  at 
the  end  of  the  declaration  will  suffice.      "The  distmction 

(r)  See  same  author.;  i  Swan's  Pr.  1S5  /',  349 «,  b ;  \\  East,  62 ;  i  Saund. 
2S8,  n.  I. 

W  II  111.573- 

(J.)  I  Chit.  PL  309;  II  East,  62;   i  Saund.  28S,  n.  I. 

(k)  i  Chit.  PI.  310;  2   Id.  3S5/. 

{v)  I  Swan's  Pr.  1S5  i ;  3  Dowl.  P.  C.  211  ;  5  Dane's  Ab.  102;  2  Chit. 
PI.,  8  Am.  ed.  383/. 

(w)  I  Swan's  Pr.  1S5  i ;  Wil.  Pr.  82,  83,  n.  See  i  Chit.  PI.,  11  Am.  ed. 
361. 


DEBT.  323 

Declarations — Payee  against  maker  of  note. 

is  said  to  be,  that  whenever  the  debt  arises  merely  by  the 
judgment  or  obligation,  etc.,  and  not  from  anything  dehors^ 
a  non-performance  of  the  obligation  is  to  be  laid,  and  the 
conclusion  is  to  be  with  the  breach  ad  damnum;  but  that 
where  the  debt  arises,  not  by  the  obligation  alone,  but  also 
by  some  matters  dehors  stated  in  the  declaration,  there  the 
count  should  conclude  -per  quod  actio  accrevit,  etc.,  as  in 
debt  on  a  lease  for  rent."  (x)  The  clause  "whereby,"  etc., 
is  not,  it  seems,  in  the  old  entries,  e.xcept  in  cases  where 
the  debt  arises  from  some  misfeasance,  as  on  a  penal  stat- 
ute, or  against  a  sheriff  for  an  escape,  or  on  leases,  awards, 
etc.  {y) 

Ko.    148.      Payee    against    maker    of   -promissory    note. 
Special  con, it  on  note,  and  consolidated  common  counts. 

In  the Court. 

Term,  18—. 

State  of   Illinois, 


County  of ,        5    set.     A.  B.,  plaintiff,  by  E.  F., 

his  attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of 

debt :   For  that  whereas  the  defendant,  on  the day  of 

,  in  the  year  18 — ,  in  the  county  aforesaid,  made  his 

promissory  note,  and  delivered  the  same  to  the  plaintiff, 

and  thereby  then  and  there  promised  to  pay,  

after  the  date  thereof,  to  the  plaintiff  or  his  order,  the  sum 

of dollars,  for  value  received,  with  interest  thereon^ 

etc.:  by  means  whereof  the  defendant,  on  the  dd^y  Jirst 
aforesaid,  there  became  liable  to  pay  to  the  plaintiff  the 
sum  of  money  in  the  said  note  specified,  according  to  the 
tenor  and  effect  thereof. 

And  whereas  also  the  defendant,  on  the day  of , 

in  the  year  18 — ,  in  the  county  aforesaid,  was  indebted  to 

the  plaintiff  in  the  sum  of  dollars,  for  goods,  chattels 

and  effects  before  that  time  sold  and  delivered  by  the  plaintiff 
to  the  detendant,  at  his  request ;  and  in  the  like  sum  for 
goods,  chattels  and  effects  before  that  time  bargained  and 
sold  by  the  plaintiff  to  the  defendant,  at  his  request ;  and  in 
the  liive  sum  lor  work  and  services  before  that  time  done 


(*)  I  Chit.  PI.  310.     Gilb.  tit.  Debt,  414,  415.     See  i  Swan's  Pr.  385  a. 
(  v)  2  Chit.  PI.  3S5  /•;  Gilb.  tit.  Dobt,  413;  i  Swan's  Pr.  385  a. 


324  DEBT. 

Declarations — Payee  against  maker  of  note. 

and  bestowed,  and  materials  for  the  same  work  furnished, 
by  the  plaintiff  for  the  defendant,  at  his  request ;  and  in  the 
like  sum  for  money  before  that  time  lent  by  the  plaintiff  to 
the  defendant,  at  bis  request ;  and  in  the  like  sum  for 
money  before  that  time  paid  and  expended  by  the  plaintiff 
for  the  use  of  the  detendant,  at  his  request ;  and  in  the  like 
sum  for  money  before  that  time  received  by  the  defendant, 
for  the  use  of  the  plaintiff;  and  in  the  like  sum  for  interest 
on  divers  sums  of  money  before  that  time  forborne  by  the 
plaintiff  to  the  defendant,  at  his  request,  for  divers  spaces 
of  time  before  then  elapsed  ;  and  in  the  like  sum  for  money 
found  to  be  due  from  the  defendant  to  the  plaintiff,  on  an 
account  then  and  there  stated  between  them  :  which  said 
several  sums  of  money,  so  due  to  the  plaintiff  as  aforesaid, 
were  respectively  to  be  paid  to  him  by  the  defendant,  on 
request. 

Yet  the  defendant,  though  often  requested,  and  though 
the  day  of  payment  in  the  said  note  mentioned  has  elapsed, 
has  not  paid  to  the  plaintiff  the  several  sums  of  money  in 
the  several  counts  above  specified,  together  amounting  to 

the  sum  of dollars  (^the  sum  mentioned  as  the  debt  in 

the  summons,  being  the  agg?'egate  of  all  the  sums  de- 
manded in  the  several  counts),  or  any  part  thereof,  but 
refuses  so  to  do  ;  to  the  damage  of  the  plaintiff  of dol- 
lars, and  therefore  he  brings  his  suit,  etc. 

The  damages,  in  this  action,  are  in  general  merely  nom- 
inal ;  but  if  there  is  a  demand  for  interest,  the  damages  laid 
should  be  sufficient  to  cover  it.  Interest,  whether  expressly 
reserved  in  the  contract,  or  given  by  law,  is  an  incident  to 
the  debt,  and  is  recovered  in  the  form  of  damages,  without 
being  specially  claimed  in  the  declaration  ;  {z)  though 
where  given  by  a  statute,  as  a  penalty,  it  must  be  specially 
claimed,  {a) 

It  is  unusual  to  bring  debt  on  notes  not  under  seal,  ex- 
cept where  counts  on  such  notes  are  joined  with  counts  on 
specialties  or  records,  for  the  purpose  of  saving  multiplicity 
ol  actions. 

(ar)  2  Scam.  313. 
(_«)  I  Scam.  415. 


DEBT.  325 

Declaration  on  bill  of  exchange. 

Where  an  instrument  provides  for  the  payment  of  in- 
terest— as  where  a  note,  bill  or  bond  is  for  the  payment  of 
a  certain  sum,  at  a  certain  time  after  the  date  thereof,  with 
interest  from  such  date — it  would  seem  that  the  interest  u^ 
to  the  maturity  of  the  instrument  ought  to  be  considered  a 
part  of  the  debt,  and  that  only  the  interest  which  has  ac- 
crued after  the  maturity  of  the  instrument  should  be  con- 
(.■>idered  as  damages. 

In  Marsh  v.  Wright,  14  111.  248,  where  the  plaintiff 
declared  in  debt,  for  work  and  labor  done,  the  court  said : 
"As  interest  was  not  specifically  claimed  in  the  declara- 
tion, it  could  not  be  considered  as  part  of  the  debt.  If 
recoverable  at  all,  it  was  onlv  as  damages  for  the  detention 
of  the  debt.  Judgment  should  have  been  entered  for  the 
amount  of  the  indebtedness  established  by  the  evidence,  as 
the  debt,  and  for  the  amount  of  the  interest  due  thereon,  as 
the  damajjes." 

In  an  action  of  debt  on  a  promissory  note,  it  was  alleged 
in  one  count  of  the  declaration  that  the  defendant,  on,  etc., 
*'by  his  promissory  note  of  that  date,  by  him  made,  for 
value  received,  four  months  after  the  date  of  the  said  note, 
■promised  the  plaintiffs  to  pa}'  them,  or  their  order,  without 
detalcation,  the  sum  of  four  hundred  dollars,"  etc.,  and  the 
rount  concluded  with  a  request  and  refusal  to  pa}^  The 
r.ourt  held  this  to  be  a  sufficient  count  in  debt,  the  word 
promised  not  being  used  by  way  of  averment  to  show  the 
liability  of  the  defendant,  but  as  descriptive  of  the  instru- 
ment, {b) 

No.  149.      On  a  bill  of  exchange — pyayce  against  drazvcr, 
on  default  of  payment. 

(  Conunence  as  in  last  precedent.^  For  that  whereas  the 
detendant,  on,  etc.,  in,  etc.,  made  his  bill  of  exchange,  and 
delivered  the  same  to  the  plaintiff',  and  thereby  then  and 

there  requested  one  G.  H.  to  pay. after  the  date 

^iiereof,  to  the  plaintiff,  or  his  order,  the  sum  of dol- 

(3)  3  Gilm.  loi.      Id.     75;   16  111.  lo-;. 


326  DEBT. 

Declawtion  on  an  award. 


lars,  for  value  received,  zvith  interest  thereon,  etc. ;  which 
said  bill  the  said  G.  H.,  on  the  day  j^rst  aforesaid,  upon 
sight  thereof,  there  accepted  :  And  the  plaintiff  avers,  that 
when  the  said  bill  became  due,  to  wit,  on,  etc.,  the  same 
was  there  presented  to  the  said  G.  H.  for  payment  thereof, 
and  he  was  then  and  there  requested  to  pay  the  amount  of 
the  said  bill,  according  to  the  tenor  and  effect  thereof;  but 
that  the  said  G.  H.  did  not  nor  would  then,  or  at  any  time 
before  or  afterwards,  pay  the  said  amount,  or  any  part 
thereof,  but  refused  so  to  do ;  of  which  premises  the  de- 
fendant then  and  there  had  notice  :  By  means  whereof  the 
detendant  then  and  there  became  liable  to  pay  to  the 
plaintiff,  on  request,  the  said  amount  of  the  said  bill ;  and 
being  so  liable,  the  defendant,  in  consideration  thereof,  then 
and  there  agreed  to  pay  the  said  amount  to  the  plaintiff',  on 
request. 

{Add  coiints  on  the  consideration  of  the  bill  betiuecn  the 
■plaintiff  and  the  defendant ,  the  money  counts,  interest, 
and  account  stated — the  consolidated  coniinon  counts,  as  in 
the  last  -precedent,  may  be  used — and  the  follozving  breach :) 

Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff'  the  said  amount  of  the  said  bill  and  the  several 
other  sums  ot  money  above  specified,  together  amounting 

to  the  sum  of  dollars,  or  any  part  thereof,  but  refuses 

so  to  do ;  to  the  damage  of  the  plaintiff'  of  dollars, 

and  therefore  he  brings  his  suit,  etc. 

See  forms  No.  36  and  No.  38,  (ante,  pages  109,  110,) 
and  the  observations  thereunder. 

JVo.  150.      Oil  a?i  aivard,  where  the  submission   ivas  by 
arbitration-bonds. 

{Commence  as  in  No.  147,  ante.)  For  that  whereas, 
certain  differences  having  arisen  and  being  depending  be- 
tween the  plaintiff"  and  the  defendant,  the  plaintiff',  on,  etc., 
in,  etc.,  by  a  certain  bond  of  arbitration  bearing  date  of 
that  day,  became  bound  to  the  defendant  in  a  certain  penal 
sum  in  the  said  bond  mentioned ;  and  the  defendant  then 
and  there,  by  a  certain  other  bond  of  arbitration,  bearing 
date  of  the  same  day,  became  and  was  bound  to  the  plaintiff 
in  a  certain  penal  sum  in  the  same  bond  mentioned  ;  which 
said  bonds  were  respectively  conditioned  to  [Jiere  set  oat 


DEBT.  327 

Declaration  on  an  award. 

the  substance  of  the  condition,  which  maybe  thus — )  abide 
the  award  and  determination  of  E.  F.,  an  arbitrator  indif- 
ferently elected  and  named,  as  well  by  and  on  the  behalf 
of  the  defendant  as  by  and  on  the  behalf  of  the  plaintiti', 
to  arbitrate  and  award  concerning  all  actions,  causes  of 
action,  controversies  and  demands  whatsoever,  theretofore 
had,  brought,  or  depending  by  and  between  the  said  parties, 
so  as  the  said  award  should  be  made  in  writing,  under  the 
hand  of  the  said  E.  F.,  and  ready  to  be  delivered  to  the 
said  parties  in  difference,  or  whichever  ot  them  should 
desire  the  same,  on  or  before,  etc.  And  the  plaintiff'  fur- 
ther savs,  that  the  said  E.  F.,  having  taken  upon  himself 
the  burden  of  the  said  arbitration,  did  in  due  tnanner,  and 
within  the  time  for  that  purpose  appointed,  to  wit,  on,  etc., 
there  duly  make  and  publish  his  award  in  writing,  by  him 
subscribed,  concerning  the  said  matters  in  difference  be- 
tween the  said  parties,  ready  to  be  delivered  to  the  said 
parties  in  difference,  or  whichever  of  them  should  desire 
the  same,  and  did  thereby  award  that  the  defendant  should 

pay  to  the  plaintiff'  the  sum  of  dollars,  {^set  out  the 

award  so  far  as  relates  to  the  payment  of  the  mon-ey,) 
which,  Vvhen  paid,  should  be  in  full  satisfaction  of  all  claims 
and  demands  of  the  plaintiff'  upon  or  agamst  the  defend- 
ant, for  or  in  respect  of  the  said  matters  m  difference  ;  and 
the  said  E.  F.  did  thereby  further  award,  that  the  plaintiff 

should  pay dollars  as  and  lor  the  costs  of  that. his 

award,  and  that  the  defendant  should,  upon  demand,  repay 

to  the  plaintiff' one  moiety  of  such  sum  of dollars,  and 

that  in  all  other  respects  the  said  parties  respectively  should 
bear  their  own  costs  of  that  reference  ;  as  by  the  said  award, 
rel'erence  being  thereunto  had,  will  more  fully  appear;  of 
which  said  award  the  defendant,  on  the  day  last  albresaid, 
there  had  notice.  And  although  the  defendant  did  after- 
wards, to  wit,  on,  etc.,  pay  to  the  plaintiff'  the  said  sum  of 
dollars  in  the  said  award  mentioned,  3-et  the  defend- 
ant has  not  paid  to  the  plaintitf  the  said  sum  of dol- 
lars in  the  said  award  mentioned,  or  any  part  thereof, 
although  to  pay  the  last-mentioned  sum  of  money  the  de- 
fendant was  there  requested  by  the  plaintiff',  to  wit,  on, 
etc.,    aforesaid.     Whereby  an  action  has   accrued  to   the 

plaintiff' to  demand  of  the  defendant  the  said  sum  of  

dollars. 

{Add  counts  for  money  paid,  interest,  and  on  an  account 


328  DEBT. 

Declaration  on  judgment  of  same  court. 

stated,  in  debt,  as  in  No.   148,  ante,  and  convnon  conclu- 
sion, as  under  ISfo.  147. 

Where  the  submission  is  by  bond,  the  plaintiff  has  an 
election  to  sue  on  the  bond  or  on  the  award,  if  it  is  merely 
for  the  payment  of  money.  But  if  a  collateral  thing  is 
awarded,  the  suit  must  be  on  the  bond,  as  debt  will  lie  for 
money  only,  [c) 

Where  a  sum  of  money  is  awarded,  it  is  sufficient  to  set 
forth  so  much  only  of  the  award  as  to  show  a  good  cause 
of  action,  {d^  But  if  there  is  any  condition  precedent, 
etc.,  to  be  performed  by  the  plaintiff,  it  should  be  stated, 
and  perlormance,  or  a  tender  and  refusal,  averred. 

A  verbal  award  may  be  set  forth  substantially,  {e)  In 
setting  forth  an  award,  it  seems  hardly  safe  to  say  that 
*' among  other  things"  it  was  awarded;  but  there  are  au- 
thorities which  hold  this  good,  {f) 

In  an  action  of  debt  on  an  arbitration-bond,  it  is  only 
necessary  that  the  declaration  should  show  that  the  award 
was  made  in  pursuance  of  the  bond,  and  that  the  defendant 
has  not  complied  with  the  award.  The  rule  is,  however, 
different  where  the  action  is  directly  on  the  award  itself,  in 
which  case  a  mutual  submission  must  be  alleged.  (^*) 

]Vo.  151.      On  a  judgment  of  the  same  cow't. 

{Commence  as  in  No.  147,  ante.)     For  that  whereas  the 

plaintiff,  in  the term  of  the  said Court,  in  the  year 

18 — ,  to  wit,  on,  etc.,  in  the  same  year,  by  the  considera- 
tion and  judgment  of  the  said  court  recovered  against  the 

defendant,  in  a  certain  action  of ,  the  sum  of dollars, 

damages,  {or  "the  sum  of dollars,  debt,  and  the  further 

sum  of dollars,  damages  for  the  detention  thereof,"  ac- 
cording to  the  record,)  and  also  the  costs  of  the  plaintiff  in 

(c)  2  Saimd.  62,  n.  5. 

(^)  I  Ld.  Raym.  115;  Bur.  278. 

(e)  2  Vent.  242. 

(/)  I  Mod.  36:  01.  Prec.  506. 

{g)  2  Scam.  35. 


DEBT.  329 

Declaration  on  judgment  of  court  of  another  state. 

that  behalf,  taxed  at  the  sum  of  dollars,  whereof  the 

defendant  was  convicted  ;  as  by  the  record  thereof,  remain- 
ing in  the  said  court,  more  fully  appears ;  which  said  judg- 
ment still  remain?  in  full  force  :  Yet  the  defendant  has  not 
paid  to  the  plaintiff  the  said  sums  of  money  so  by  him  re- 
covered as  aforesaid,  together  amounting  to  the  sum  of 

dollars,  or  any  part  thereof,  but  refuses  so  to  do  ;  to  the 

damage  of  the  plaintiff  of  dollars,  and  therefore  he 

brings  his  suit,  etc.  {^Let  the  damages  be  enough  to  cover 
the  interest.) 

In  an  action  on  a  judgment  for  the  defendant,  for  costs, 
the  recovery  may  be  described  as  being  for  "the  costs  of 
the  plaintiff,  taxed  at  the  sum  of  dollars,  by  him  ex- 
pended in  and  about  his  defense  of  a  certain  action  of,  etc., 
then  lately  prosecuted  against  him  in  the  same  court,  by 
the  defendant,  whereof,"  etc. 

Care  should  be  taken  to  set  forth  the  particulars  of  the 
judgment  correctly — the  amount,  and  the  court  and  term 
in  which  rendered,  etc.  (Ji) 

The  allegation  that  the  judgment  remains  in  full  force, 
though  usually  inserted,  is  not  necessary,  {i) 

No.  152.      On  a  Judgment  0/ a  court  0/  another  state. 

{Commence  as  in  No.  147,  ante.)      For  that  whereas  the 

plaintitr,  in  the  term,  in  the  year  18 — ,  of  the  

Courtof  the  county  of ,  in  the  state  of ,  to  wit,  on, 

etc.,  in  the  same  year,  by  the  consideration  and  judn-ment 
of  the   same  court  recovered  against  the  defendant,  in  a 

certain  action  of ,  the  sum  of dollars,  damao^es, 

{or  "the  sum  of dollars,  debt,  and  the  further  sum  of 

dollars,  damages  for  the  detention  thereof,"  according- 

to  the  record,)  and  also  the  costs  of  the  plaintiff  in  that 
behalf,  taxed  at  the  sum  of  dollars,  whereof  the  de- 
fendant was  convicted  ;  as  by  the  record  thereof,  remaining 
in  the  same  court,  more  fully  appears  ;  which  said  jud(»-- 


(Ji)  2  Chit.  PI.  483,  notes;  Com.  Dig.  PI.  2  W.  12;  2  Str.  1171;  4  Wend. 
207;  4  Ohio,  397.     See  2i  111.  85. 

f; )  2  Chit.  PI.  484,  n. ;   i  Saund.  330,  n.  4. 


330  DEBT. 

Declaration  on  judgment  of  justice  of  another  state. 

ment  still  remains  in  full  force  :  Yet,  etc.  {concluding  as  in 
last  pj-c  cedent.) 

By  the  constitution  of  the  United  States,  and  the  acts  of 
Congress,  judgments  in  -personam  in  the  various  states  are 
placed  on  the  same  footing  as  domestic  judgments,  and  are 
to  have  the  same  force  and  credit,  when  sought  to  be  en- 
forced in  other  states,  as  the}^  have  by  law  or  usage  in  the 
particular  states  where  rendered,  {j) 

The  settled  construction  ot  the  constitution  and  laws  of 
the  United  States  upon  this  subject,  is  that  the  judgment  of 
a  state  court  shall  have  the  same  credit,  validity  ana  effect, 
in  every  other  court  in  the  United  States,  wdrich  it  had  in 
the  state  where  pronounced  ;  and  that  whatever  pleas  would 
be  good  to  a  suit  thereon  in  such  state,  and  none  other,  can 
be  pleaded  in  any  other  court  in  the  United  States,  {k) 

The  legal  presumption,  in  the  absence  of  evidence  to  the 
contrary,  is  in  favor  of  the  jurisdiction  of  a  court  of  record 
of  another  state,  which  has  assumed  to  exercise  jurisdiction 
over  a  subject-matter  in  controversy  between  parties  re- 
siding there.  (/) 

A  judgment  which  by  the  laws  of  the  state  where  ren- 
dered is  conclusive  on  the  parties,  is  equally  so  when  suit 
is  brought  thereon  in  another  state.  (;;z) 

No.  153.      On  a  jtidgment  of  a  justice  of  the  peace  of  an- 
other state. 

{^Commence  as  in  JVo.  147,  ante.)  For  that  whereas  the 
plaintiff,  on,  etc.,  before  one  F.  G.,  Esquire,  one  of  the 

justices  of  the  peace  within  and  for  the  count}'^  of  , 

in  the  state  of ,  by  the  consideration  and  judgment  of 

the  said  justice  recovered  against  the  defendant  the  sum 
of dollars,  damages,  and  the  costs  of  the  plaintiff  in 

O)  3  Gilm-  198;  4  Scam.  539;  Breese,  169;   14  III.  249. 
{k)  3  Wheat.  234;  7  Cranch,  481 ;  32  III.  304. 

(/)  4  Cowen,  292;  6  Wend.  447;  19  Johns.  33;  12  Ohio,  253;  i  Day,  163; 
I  Hall,  155  ;   13  Peters,  312  ;  34  111.  169 ;  44  111.  202. 
(w)  44  111.  32. 


DEBT.  331 

Declaration  for  rent,  on  a  demise. 

that  behalf,  taxed  at  the  sum  of dollars  ;  which  said 

judgment  still  remains  in  force  :  And  the  plaintiff  in  fact 
says,  that  the  said  justice  then  and  there  had  jurisdiction 
of  the  person  of  the  detendant,  and  by  the  statute  of  that 
state,  then  in  force,  then  and  there  had  jurisdiction  of  the 
subject-matter  adjudicated  in  that  behalf,  which  said  statute 
is  as  follows,  that  is  to  say  :  (Here  set  out  so  imich  of  the 
law  of  the  state  as  gives  jurisdiction. )  Yet  the  defendant 
has  not  paid  to  the  plaintiff  the  said  sums  of  money  so  by 
him  recovered  as  aforesaid,  together  amounting  to  the  sum 

of dollars,  or  any  part  thereof,  but  refuses  so  to  do; 

to  the  damage  of  the  plaintiff  of dollars,  and  there- 
fore he  brings  his  suit,  etc.  ( Counts  on  the  original  debt, 
and  on  an  account  stated,  may  be  inserted.) 

In  declaring  upon  a  justice's  judgment  of  another  state, 
the  statute  giving  jurisdiction  to  the  justice  must  be  pleaded. 
The  general  averment  of  jurisdiction  of  a  justice  of  the 
peace,  in  such  case,  is  not  enough,  [n) 

In  order  to  entitle  a  transcript  of  a  judgment  of  a  justice 
of  the  peace  of  another  state  to  be  received  in  evidence,  it 
must  be  shown,  by  the  laws  of  the  state  where  the  judg- 
ment was  rendered,  that  the  justice  had  jurisdiction  of  the 
subject-matter  upon  which  he  attempted  to  adjudicate.  {0) 

JVo.  154.     Declaration  in  action  for  rent,  on  a  demise. 

[Commence  as  in  No.  147,  ante.)  For  that  whereas  the 
plaintitr,  on,  etc.,  in,  etc.,  demised  to  the  defendant  a  cer- 
tain parcel  of  land,  with  the  appurtenances,  situate,  etc.,  to 
have  and  to  hold  the  same  to  the  defendant  for  and  during 

the  term  of years  then  next  ensuing,  yielding  and 

paying  therefor,  during  the  said  term,  to  the  plainlilT,  the 

yearly  rent  of dollars,  payable  quarterly,  that  is  to 

say,  on,  etc.,  etc.,  by  equal  portions;  by  virtue  of  which 
said  demise,  the  defendant,  on  the  day  first  aforesaid,  en- 
tered into  the  said  demised  propert}^,  and  was  possessed 
thereof  from  thenceforth  until  the day  of,  etc.,  wlien 

(«)  7  Wend.  435;  3  Wend.  367.  See  6  Wend.  438;  2  Cow.  &  Hill's 
Notes  to  Phil.  Ev.  103,  no. 

(o)  I  Scam.  558;  see  elaborate  note,  by  reporter,  to  this  case. 


332  DEBT. 

Declaration  for  rent,  on  a  demise. 

a  large  sum,  to  wit, dollars,  of  the  rent  aforesaid,  for 

the  space  of  ,  ending  on  the  day  last  aforesaid, 

became  due  from  the  defendant  to  the  plaintiff. 

{Second  count,  for  use  and  occupation.)  And  whereas 
also  the  defendant,  on,  etc.,  in,  etc.,  w^as  indebted  to  the 

plaintiff  in  the  further  sum  of dollars,  tor  the  use  and 

occupation  of  a  certain  other  parcel  of  land  of  the  plaintiff, 
H'ith  the  appurtenances-,  by  the  defendant  held,  used  and 
\.:ccupied,  at  his  request,  and  by  the  sufferance  and  permis- 
ision  of  the  plaintitf,  for  a  long  space  of  time  before  then 
iilapsed;  which  last-mentioned  sum  of  money  was  to  be 
I  aid  by  the  defendant  to  the  plaintiff,  on  request.. 

{Breach.)  Yet  the  defendant,  though  requested,  has  not 
(.•aid  to  the  plaintiff  the  said  sums  of  money  so  due -to  him 

fjs  aforesaid,  together  amounting  to  the  sum  of dollars, 

or  any  part  thereof,  but  refuses  so  to  do  ;  to  the  damage  of 

llie  plaintiff  of dollars,  and  therefore  he  brings  his 

sjit,  etc. 

The  first  count  of  the  above  form  may  be  used,  whether 
ihe  demise  was  by  deed  or  by  parol.  It  is  settled  that  in 
debt  for  rent  reserved  by  deed,  (except  of  incorporeal  her- 
editaments,) the  plaintiff  may  declare  without  stating  the 
uieed.  This  is  the  only  case  in  which  the  plaintiff  is  allowed 
lo  declare  generally,  and  to  produce  a  deed  in  evidence  in 
^.upport  of  such  declaration.  (_^)  When  the  declaration 
jets  out  the  lease,  it  is  similar  to  the  declaration  in  covenant 
br  rent,  {ante.  No.  140,)  except  in  the  commencement 
and  conclusion,  {q) 

It  is  not  necessary  to  show  the  local  situation  of  the  de- 
mised property,  (r) 

The  count  in  debt  for  use  and  occupation  is  sustainable, 
when  the  demise  is  not  by  deed,  or  there  was  no  covenant 
sealed  by  the  defendant,  {s) 

(/  )  2  Chit.  PI.  430,  n. ;  i  Saund.  276,  n.  i,  202,  325,  n.  4;  i  New  R.  104, 
109. 

(<7)  2  Chit.  PI.  0.7.0,  n. 

^/';  iDia.  ;  3  M.  &  5>.  380;  4  Taunt.  25;  6  East,  348. 

(5)  2  Chit.  PI.  431,  n. ;  6  T.  R.  62;  5  Taunt.  25. 


DEBT.  333 

Declaration  on  single  bill — Observations — Profert. 

No.  155.      On  a  single  bt'll,  or  sealed  note. 

{Commence  as  in  JVo.  147,  ante.)  For  that  whereas  the 
defendant,  on,  etc.,  in,  etc.,  by  his  writing  obHgatorv, 
bearing  date  of  that  day,  and  now  to  the  court  here  shown, 

bound  himself  to  pay  to  the  plaintiff, after  the 

said  date  thereof,  the  sum  of dollars  :  Yet  the  detend- 

ant  has  not  paid  to  the  plaintiff  the  said  sum  of  tnonev,  or 
any  part  thereof,  but  refuses  so  to  do  ;  to  the  damage  of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

The  common  counts  may  be  inserted,  with  the  general 
breach;  as  in  No.  148. 

Where  a  sealed  instrument  is  declared  upon,  and  de- 
scribed as  such,  or  a  word  of  art  used  which  imports  that 
it  is  sealed,  such  as  "writing  obligator}^,"  "  deed,"  or  "in- 
denture," a  delivery  is  never  averred  ;  and  the  sealing  and 
delivery,  without  an  averment  thereof,  will  be  implied.    (/) 

An  instrument  tinder  seal  is  not  a  ^promissory  note, 
though  like  one  in  form,  (u)  and  should  not  be  described 
as  such  in  a  pleading,  but  as  a  writing  obligatory.  A  bill 
obligatory,  it  is  said,  "is  a  bond  without  condition,  some- 
times called  a  single  bill,  and  differs  in  nothing  from  a 
promissory  note  but  in  the  seal  which  is  affixed  to  it."  {v) 

Profert. — The  omission  of  a  -profert^  when  necessary, 
can  be  taken  advantage  of  only  by  special  demurrer,  {w) 
If  however  a  bond  or  other  deed  is  pleaded  with  a  -pro- 
fert., (where  necessary,)  and  the  defendant  pleads  non  est 
factum.,  and  the  plaintiff  can  not  produce  the  deed  at  the 
trial,  he  will  be  nonsuited.  It  is  therefore  sometimes  neces- 
sary or  advisable  to  insert  in  the  declaration,  or  in  one 
count,  an  excuse  of  the  profert.,  as — "and  which  said 
writing  obligatory  having  been  lost,  {or  '  destroyed  by  ac- 

(/)  I  Saiind.  291,  n.  i. 

(«)  2  Bouv.  Die.  392.     See  16  111.  105. 

(f)  2  Bouv.  Die.  179;  2  Serg.  &  Rawle,  115. 

(w)  I  Chit.  PI.  315;  Com.  Dig.,  tit.  PI.  S.  17;    See  Rev.  Stat.  (1S77)  736. 


^34  DEBT. 

Actions  on  penal  bonds — Judgment  therein,  etc. 


cident,'  or  'by  the  defendant,'  or  'being  in  the  possession 
of  the  defendant,')  the  plaintiff  can  not  produce  the  same 
to  the  court  here."  (.r)  But  in  lUinois,  by  statute,  it  is  not 
necessary,  in  any  pleading,  to  make  -profert  of  any  instru- 
ment, (jy) 

Actions  071  penal  bonds  for  the  performance  of  cove- 
nants— Statute. — Section  20  of  the  Illinois  practice-act 
provides,  that  "in  actions  brought  on  penal  bonds,  condi- 
tioned for  the  performance  of  covenants,  the  plaintiff  shall 
set  out  the  conditions  thereof,  and  may  assign  in  his  decla- 
ration as  many  breaches  as  he  may  think  fit ;  and  the  jury, 
whether  on  trial  of  the  issue  or  of  inquir}?-,  shall  assess  the 
damages  for  so  many  breaches  as  the  plaintiff  shall  prove, 
and  the  judgment  for  the  penalty  shall  stand  as  a  security 
for  such  other  breaches  as  may  afterwards  happen,  and  the 
plaintiff  may,  at  any  time  afterwards,  sue  out  a  writ  of  in- 
quir}?-,  to  assess  damages  for  the  breach  of  any  covenant 
or  covenants  contained  in  such  bond,  subsequent  to  the 
former  trial  or  inquiry  ;  and  whenever  execution  shall  be 
issued  on  such  judgment,  the  clerk  shall  indorse  thereon 
the  amount  of  damages  assessed  by  the  jury,  with  the  costs 
of  suit,  and  the  sheriff  or  coroner  shall  only  collect  the 
amount  so  indorsed  :  'Provided,  that  in  all  cases  where  a 
writ  of  inquiry  of  damages  shall  be  issued  for  any  such 
breaches  subsequent  to  the  first  trial  or  inquiry,  the  defend- 
ant, or  his  agent  or  attorney,  shall  have  at  least  ten  days' 
notice,  in  writing,  of  the  time  of  executing  the  same."   {z^ 

yudgjjient,  etc.,  in  actions  on  penal  bonds. — In  actions 
of  debt  on  penal  bonds,  the  judgment  for  the  plaintiff  is 
for  the  penalty,  the  debt  in  ntpnero,  to  be  discharged  by 
the  payment  of  the  damages  assessed,  which  are  to  be 
found  separately.     The  execution  issues  for  the  debt,  with 

(*)  2  Chit.  PI.  439;  4  East,  585;  2  Campb.  557. 
(r)  Rev.  Stat.  (I^74)  777;  Rev.  Stat.  (1S77)  736. 
{Z)     lb. 


DEBT.  335 

Declaration  on  an  appeal-bond. 

an  indorsement,  by  the  clerk,  of  the  amount  of  the  dam- 
ages, which  amount  only  the  officer  is  to  collect,  (a) 

JVo.  156.      On  a  bond  given  on  an  appeal  to  the  Supreme 

Court. 

{Title  0/ court,  etc.)  A.  B.,  plaintiff,  b}^  E.  F.,  his 
attorney,  complains  of  C.  D.  and  G.  H.,  defendants,  of  a 
plea  that  they  render  to  the  plaintiff  the  sum  of  dol- 
lars, [the  penalty,)  which  they  owe  to  and  unjustly  detain 
Irom  him  :  For  that  whereas  the  defendants,  on,  etc.,  in, 
etc.,  by  their  writing  obligatory,  bearing  date  of  that  day, 
jointly  and  severally  acknowledged  themselves  to  be  held 

and  hrmly  bound  unto  the  plaintitf  in  the  said  sum  of 

dollars,  to  be  paid  to  the  plaintiff;  which  said  writing  ob- 
ligatory was  and  is  subject  to  a  certain  condition  there- 
under written,  whereby,  after  reciting  to  the  effect  that  in 

the term,  in  the  year  18 — ,  of  the  said  Q\yc\x\\Co\\ii 

of  the  county  of aforesaid,  on  the da}-  of  , 

in  the  same  year,  by  the  consideration  and  judgment  of 
that  court  the  plaintiff  recovered  against  the  said  C.  D., 
in  a  certain  action  of  ,  the  sum  of dollars,  dam- 
ages {or  "the  sum  of dollars,  debt,  and  the  further 

sum  of  dollars,  damages  for  the  detention  thereof," 

jccording  to  the  bond,)  and  the  costs  of  the  plaintiff  in  that 

behalf,  taxed  at  the  sum  of  dollars,  from  which  said 

judgment  the  said  C.  D.  had  taken  an  appeal  to  the  Su- 
preme Court  of  the  said  state,  it  was  provided  that  if  he 
the  said  C.  D.  should  duly  prosecute  his  said  appeal,  and 
should  pay  to  the  plaintiff  the  amount  of  the  said  judgment, 
and  all  interest  thereon,  and  all  such  costs  and  damages 
as  should  by  the  said  Supreme  Court  be  awarded  to  the 
plaintiff  in  case  the  said  judgment  should  be  affirmed,  or 
the  said  appeal  dismissed,  then  the  said  writing  obligatory 
was  to  be  void,  otherwise  to  remain  in  full  force  ;  as  by  the 
said  writing  obligatory,  and  the  said  condition  thereol,  re- 
maining affiled  in  the  said  Cncuit  Court,  will  appear.    And 

although  afterwards,  in  the term,  in  the  year  18 — ,  of 

the  said  Supreme  Court,  to  wit,  on  the day  of  , 

in  the  same  year,  at ,  by  the  consideration  of  the  same 

court  (*)  the  said  judgment  in  the  said  writing  obligatory 

(rt)  2  Scam.  571 ;    i  Gilm.  347  ;  4  Gihn.  136;    11111.452,562.36111.458; 
54III.  i^t;  69  111.  253;   72  III.  71.' 


336  DEBT. 

Declaration  on  an  appeal-bond. 

mentioned  was  affirmed,  and  the  plaintiff  recovered  against 
the  said  C.  D.  the  costs  of  the  plaintiff  by  him  about  his 
defense  of  the  said  appeal  expended,  taxed  at  the  sum  of 
dollars,  whereof  the  said  C.  D.  was  convicted  ;  nev- 
ertheless the  said  C.  D.  has  not  paid  to  the  plaintiff  the 
amount  of  the  said  judgment  in  the  said  writing  obligatory 
mentioned,  and  the  interest  thereon,  and  the  costs  last 
aforesaid,  or  any  part  of  the  same  :  (*)  whereby  an  action 
has  accrued  to  the  plaintiff  to  demand  of  the  defendants 

the  said  sum  of dollars  {the  -penalty^  above  demanded. 

Yet  the  defendants,  though  requested,  have  not  paid  that 
sum  of  money,  or  any  part  thereof,  to  the  plaintiff,  but  re- 
fuse so  to  do  ;  to  the  damage  of  the  plainuff  of dol- 
lars, and  therefore  he  brings  his  suit,  elc.  {Lay  the 
damages  at  a  sum  sufficient  to  cover  the  judgment.,  interest 
and  costs.) 

If  the  appeal  was  dismissed,  then  in  lieu  of  the  words 
between  the  two  asterisks,  say  :  "the  said  appeal  was  dis- 
missed for  want  of  prosecution,  {or  'for  a  failure  to  lile  in 
the  office  of  the  clerk  of  that  court,  as  required  by  law,  an 
authenticated  copy  of  the  record  of  the  said  judgment'  in 
the  said  writing  obligatory  mentioned,')  and  the  plaintiff 

recovered  against  the  said  C.  D.  as  well  the  sum  of 

dollars,  for  the  damages  of  the  plaintiff  in  that  behalf,  as 
his  costs  about  his  defense  of  that  appeal  expended,  taxed 

at  the  sum  of dollars,  whereof  the  said  C.  D.  was 

convicted ;  nevertheless  the  said  C.  D.  has  not  paid  to  the 
plaintiff  the  amount  of  the  said  judgment  in  the  said  writ- 
ing obligatory  mentioned,  and  the  interest  thereon,  and  the 
damages  and  costs  last  aforesaid,  or  any  part  of  the  same." 

The  dismissal  ot  an  appeal  or  certiorari  is  held  to  be 
equivalent  to  an  affirmance  of  the  judgment  of  the  court 
below,  so  as  to  entitle  the  obligee  to  claim  a  forfeiture  of 
the  bond,  and  to  have  his  action  thereon,  {b)  But  as  the 
statute  of  Illinois  only  gives  damages  on  the  dismissal  of 
.an  appeal  for  want  of  prosecution,  or  for  a  failure  to  file  in 

i^b)  2  Scam.  571;  22  111.  91. 


DEBT.  337 

Declaration  on  an  appeal-bond. 

the  Supreme  Court  a  transcript  of  the  record,  (c)  it  would 
seem  th;.t  the  declaration  ought  to  allege  a  dismissal,  and 
an  award  of  damages,  where  such  is  the  fact. 

A  declaration  on  an  appeal-bond  is  sufficient  which  avers 
that  the  appeal  was  not  prosecuted,  that  the  amount  of  the 
judgment  was  not  paid,  and  that  the  judgment  was  affirmed. 
Such  declaration  need  not  aver  that  the  order  dismissing 
the  appeal  was  filed  in  the  court  below,  or  that  the  judg- 
ment appealed  from  w^as  final,  or  that  the  appeal-bond  was 
approved  by  the  court,  (d) 

An  appeal-bond  is  binding  on  the  obligors,  (to  the  extent 
of  the  obligation,)  though  the  condition  thereof  may  not  be 
as  broad  as  the  language  of  the  statute,  (e)  But  where 
an  appeal-bond  contains  conditions  which  are  not  required 
by  the  statute,  such  conditions  are  not  obligatory  on  the 
makers.  (  /) 

The  obligors  in  an  appeal  bond  are  estopped  by  their  bond 
to  deny  the  existence  of  a  valid,  unsatisfied  judgment,  at  the 
time. the  bond  was  executed.  (^) 

At  common  law,  the  conditions  of  a  bond  may  be  in  part 
valid,  and  in  part  void,  if  they  are  severable  ;  and  the  same 
rule  applies  to  statu  tor}-  bonds,  where  the  statute  is  silent 
as  to  the  effect  of  a  departure  from  the  statutory  form.  If 
the  good  and  bad  conditions  are  incapable  of  severance, 
the  bond  is  wholly  bad.  {/i) 

{c)  Rev.  Stat.  (1877)  74",- 
(a-)  22  111.  91  ;  78  111.  208. 
(e)  3  Scam.  347;  3  Gilm.  55. 
(/)  39  111-  225. 
{£■)   I  Bradwell,  171. 

(A)  36  111.  458;  Gilpin's  R.  178;  2  Green,  (N.J.)  480;  7  Men.  317.  See 
48  III.  445- 

22 


338  DEBT. 

Declaration  on  a  replevin-bond. 


No.  157.     On  a  replevin-bond  {given  in  a  suit  in  the  same 

court). 

{Title  of  court,  etc.)  A.  B.,  plaintiff,  who  sues  in  this 
behalf  for  the  use  of  C.  D.,  complains  of  E.  F.  and  G.  H., 
defendants,  of  a  plea  that  they  render  to  the  plaintiff,  for 

the  use  aforesaid,  the  sum  of  ^ dollars,  which  they  owe 

to  and  unjustly  detain  from  him  :  For  that  whereas  the  said 

E.  F.,  on,  etc.,  in,  etc.,  made  his  plaint  to  the  said 

Court  of  the  county  aforesaid,  of  the  taking  and  unjustly 
detaining  of  his  goods  and  chattels  by  the  said  C.  D.,  and 
thereby  prayed  that  the  said  goods  and  chattels,  therein 
described,  might  be  forthwith  replevied  and  delivered  to 
him  the  said  E.  F.  by  the  sheriff  of  the  county  aforesaid  ; 
and  the  said  E.  F.  then  and  there  made  oath,  before  the 
clerk  of  the  said  court.,  that  he  the  said  E.  F.  was  then  the 
owner  and  lawfully  entitled  to  the  possession  of  the  said 
goods  and  chattels,  and  that  the  same  had  not  been  taken 
for  any  tax,  assessment  or  fine  levied  by  virtue  of  any  law 
of  this  state,  nor  seized  under  any  execution  or  attachment 
against  the  goods  and  chattels  of  him  the  said  E.  F.,  liable 
to  execution  or  attachment :  And  thereupon  there  issued 
then  and  there,  from  the  said  court,  a  certain  writ  of  re- 
plevin, directed  to  the  sheriff  of  the  said  county,  whereby 
the  People  of  the  said  state  of  Illinois  commanded  such 
sheriff  that  if  the  said  E.  F.  should  give  bond  to  such 
sheriff,  with  good  and  sufficient  security,  to  prosecute  the 
suit  of  the  said  E.  F.  in  that  behalf  to  effect,  and  without 
delay,  and  to  make  return  of  the  said  goods  and  chattels, 
if  return  thereof  should  be  awarded,  and  to  save  and  keep 
harmless  such  sheriff  in  replevying  the  said  goods  and 
chattels,  then  such  sheriff  should  without  delay  replevy 
and  deliver  to  the  said  E.  F.  the  said  goods  and  chattels, 
which  the  said  C.  D.  took  and  unjustly  detained,  as  it  was 
said,  and  that  such  sheritT  should  have  that  writ,  together 
with  such  bond,  before  the  said  court,  on  the  first  day  of 

the  then  next term  thereof;  which  said  writ,  on  the 

day  first  aforesaid,  was  there  delivered,  for  execution 
thereof,  to  the  plaintiff,  who  then  and  from  thence  until 
and  at  and  after  the  time  of  the  making  of  the  writing  obliga- 
tory hereinafter  mentioned,  and  the  replevying  of  the  said 
goods  and  chattels  as  hereinafter  mentioned,  was  sheriff  of 
the  county  aforesaid  :  And  thereupon  the  plaintifl^,  so  being 


DEBT.  339 

Declaration  on  a  replevin-bond. 

such  sheriff  as  aforesaid,  took  from  the  said  E.  F.,  and 
from  the  said  G.  H.  as  a  good  and  sufficient  surety,  bond 
in  double  the  vahie  of  the  said  goods  and  chattels  so  about 
to  be  replevied;  and  on  that  occasion  they  the  said  E.  F. 
and  G.  H.  then  and  there,  by  their  writing  obligatory, 
commonly  called  a  replevin-bond,  bearing  date  of  the  day 
tirst  aforesaid,  did  jointly  and  severally  acknowledge  them- 
selves to  be  held  and  firmly  bound  unto  the  plamtiff,  so 

being  such  sheriff  as  aforesaid,  in  the  sum  of  dollars 

above  demanded,  to  be  paid  to  the  plaintiff;  which  said 
writing  obligator}'  was  and  is  subject  to  a  certain  condition 
thereunder  written,  to  the  effect  that  if  the  said  E.  F.  should 
prosecute  his  said  suit  to  effect,  and  Mathout  delay,  and 
should  make  return  of  the  said  goods  and  chattels,  if  return 
thereof  should  be  awarded,  and  should  save  and  keep 
harmless  the  plaintiff,  so  being  such  sheriff  as  aforesaid, 
in  replev34ng  the  said  goods  and  chattels,  then  the  said 
writing  obligatory  was  to  be  void,  otherwise  to  remain  in 
full  torce  ;  as  by  the  said  writing  obligatory  and  the  said 
condition  thereof,  remaining  affiled  in  the  said  court,  will 
appear :  And  thereupon  the  plaintiff,  so  being  such  sheriff 
as  aforesaid,  b}'  virtue  of  the  said  writ  then  and  there  re- 
plevied and  made  deliverance  of  the  said  goods  and  chat- 
tels to  the  said  E.  F.,  as  by  the  said  writ  the  plaintiff  was 
commanded:    (*)   And  thereupon  afterwards,  in  the  said 

court,  as  of  the  said  term  thereof,  in  the  year  i8 — , 

the  said  E.  F.  declared  against  the  said  C.  D.  in  the  said 
plea  of  taking  and  detainmg  the  said  goods  and  chattels, 
and  by  the  said  declaration  complained  that  the  said  C.  D., 
on,  etc.,  aforesaid,  in,  etc.,  aforesaid,  took  the  goods  and 
cliattels  of  him  the  said  E.  F.,  in  the  said  declaration  more 
particularly  described,  and  them  unjustly  detained,  until, 

etc.,  to  the  damage  of  him  the  said  E.  F.  of dollars, 

etc.  :  And  such  proceedings  were  thereupon  had  in  that 
plea,  in  the  said  court,  that  afterwards,  in  the  same  term," 
it  was  considered  and  adjudged  by  the  said  court  that  the 
said  E.  F.  should  take  nothing  by  his  said  writ,  and  that 
the  said  C.  D.  should  go  thereof  without  day,  and  should 
have  a  return  of  the  said  goods  and  chattels.  And  the 
plaintiff  in  fact  says,  that  the  said  E.  F.  did  not  make  a 
return  of  the  said  goods  and  chattels,  but  has  hitherto  re- 
fused, and  still  refuses,  so  to  do  ;  whereby  an  action  has 
accrued  to  the  plaintiff  to  demand  of  the  defendants,  for 


340  DEBT. 

Declaration  on  a  replevin-bond. 

the  use  aforesaid,  the  said  sum  of  dollars  above  de- 
manded. Yet  the  defendants,  though  requested,  have  not 
paid  to  the  plaintiff  the  said  sum  of  money  above  demanded, 
or  any  part  thereof,  but  refuse  so  to  do ;  to  the  damage  of 

the   plaintitT,   for  the  use   aforesaid,   of  dollars,   and 

therefore,  for  the  use  aforesaid,  he  brings  his  suit,  etc. 

If  there  was  judgment  of  non  -pros,  in  the  action  of  re- 
plevin, then  proceed,  from  the  asterisk  in  the  atove  form, 
as  follows  : 

And  the  plaintiff  in  fact  says,  that  the  said  E.  F.  did  not 
prosecute  his  said  suit  to  etlect,  but  therein  wholly  failed  ; 

and  thereupon  afterwards,  in  the  said term  of  the  said 

court,  it  was  considered  by  the  said  court  that  the  said  E.  F. 
should  take  nothing  by  his  said  writ,  and  that  the  said 
C.  D.  should  go  thereof  without  day,  and  should  have  a 
return  of  the  said  goods  and  chattels  :  And  the  plaintiff 
further  in  fact  says,  that  the  said  E.  F.  did  not  make  a  re- 
turn of  the  said  goods  and  chattels,  but  has  hitherto  refused, 
and  still  refuses,  so  to  do :  Whereby,  etc.  {as  in  the  above 
precedent^  to  the  end.) 

The  following  is  suggested  as  a  shorter,  and  probably 
sufficient,  form  of  declaration  on  a  replevin-bond,  {i) 

JVo.   158.     Another  form  of  declaration  on   a  replevin- 
bond. 

iyCommence  as  in  last  precedent.)  For  that  whereas  the 
defendants,  on,  etc.,  in,  etc.,  by  their  writing  obligatory, 
bearing  date  of  that  day,  did  jointly  and  severally  acknowl- 
edge themselves  to  be  held  and  firmly  bouiid  unto  the 
plaintiff,  then  being  sheriff  of  the  county  aforesaid,  in  the 

sum  of  dollars  above  demanded,  to  be  paid  to  the 

plaintiff;  which  said  writing  obligatory  was  and  is  subject 
to  a  certain  condition  thereunder  written,  whereby,  after 
reciting  to  the  effect  that  the  said  E.  F.,  on  the  day  first 

aforesaid,   sued   out  of  the  said  Court  of  the  county 

aforesaid  a  certain  writ  of  replevin  against  the  said  C.  D., 
for  the  recovery  of  certain  goods  and  chattels  in  the  said 

(/)  See  I  Swan's  Pr.  364  b;  5  Mass.  314;  i  Met.  508;  Wil.  Dig.,  tit.  Bond. 


DEBT.  341 

Declaration  on  a  replevin-bond. 

condition  described,  and  that  the  plaintiff,  so  being  such 
sheriff,  was  about  to  execute  the  said  writ,  it  was  provided 
that  if  the  said  E.  F.  should  prosecute  his  suit  in  that  be- 
half to  effect,  and  without  delay,  and  should  make  return 
of  the  said  goods  and  chattels,  if  return  thereof  should  be 
awarded,  and  should  save  and  keep  harmless  the  plaintiff, 
so  being  such  sheriff  as  aforesaid,  in  replevying  the  said 
goods  and  chattels,  then  the  said  writing  obligatory  was  to 
be  void,  otherwise  to  remain  in  full  force  ;  as  by  the  said 
writing  obligatory  and  the  said  condition  thereof,  remain- 
ing affiled  in  the  said  court,  will  appear.  And  although 
afterwards,  to  wit,  on  the  day  first  aforesaid,  the  plaintiff, 
so  being  such  sheriff  as  aforesaid,  by  virtue  of  the  said 
writ  there  replevied  and  made  deliverance  of  the  said  goods 
and  chattels  to  the  said  E.  F.  ;  and  although  afterwards, in 

the term  of  the  said  court,  in  the  year  18 — ,  it  was 

considered  and  adjudged  by  the  said  court  that  the  said 
E.  F.  should  take  nothing  by  his  said  writ,  and  that  the 
said  C.  D.  should  go  thereof  without  day,  and  should  have 
a  return  of  the  said  goods  and  chattels  ;  nevertheless  the 
said  E.  F.  did  not  make  a  return  of  the  said  goods  and 
chattels,  or  any  part  thereof,  but  has  hitherto  refused,  and 
still  refuses,  so  to  do  :  whereby  an  action  has  accrued  to 
the  plaintiff  to  demand  of  the  defendants,  for  the  use  afore- 
said, the  said  sum  of dollars  above  demanded.     Yet, 

etc.  {^concluding  as  in  last  ^?'ecedent.) 


in  an  action  on  a  replevin-bond,  the  breach  need  not  be 
formally  assigned ;  but  the  plaintiff  is  entitled  to  recover, 
if  a  sufficient  breach  otherwise  appears.  (J)  An  averment 
of  the  issuing  of  a  writ  of  retorjw  habendo  is  unnecessary 
in  an  action  on  replevin-bond,  {k)  Such  writ  need  not  be 
issued  and  returned,  before  an  action  can  be  brought  on 
the  replevin-bond.  It  will  be  sufficient  if  a  return  was 
awarded,  and  the  property  has  not  been  returned.  (/) 

The  breach  need  not  be  set  out  in  broader  terms  than 
those  used  in  the  condition,  nor  need  the  proof  be  more 

(>)  5  B  &  C.  284;  2  Chit.  PI.  II  Am.  Ed.  462,  n  ;  2  Scam.  539. 

{k)  2  Scam.  539;   2  Chit.  PI.  462.  n.  ;    Willis,  6. 

{/;  22  111,  205;   21  111.  656;  7  Bradw.  215;   10  Bradw.  216. 


342  DEBT. 

Declaration  on  a  replevin-bond. 

extensive  than  the  breach,  (in)  The  declaration  concisely 
states  the  proceedings  in  replevin,  and  the  failure  to  fultill 
the  condition  of  the  bond,  and  need  not  set  out  the  goods 
replevied,  (n)  The  condition  of  the  bond  should  be  cor- 
rectly stated.  (<?)  . 

The  declaration  is  not  double,  although  both  parts  of  the 
condition  are  negatived  ;  and  if  a  sufllcient  breach  appears, 
the  plaintiff  will  be  entitled  to  recover,  although  the  breach 
is  not  formally  assigned.  {^) 

A  breach  following  the  language  of  the  condition,  that 
the  defendant  did  not  prosecute  his  suit  with  effect,  and 
without  delay,  is  sufficient ;  and  proof  of  two  years'  delay 
would  suffice,  without  proving  a  judgment  of  non  pros,  (g) 

Where  a  replevin-bond  was  taken  by  a  sheriff,  and,  his 
term  of  office  expiring,  the  writ  was  returned  unexecuted, 
and  a  new  writ  was  afterwards  issued,  which  was  executed 
by  the  successor,  without  taking  a  new  bond, — it  was  held 
that  an  action  could  be  maintained  on  the  bond  taken  by 
the  former  sheriff,  {r) 

It  is  essential  to  the  validity  of  a  replevin-bond  that  the 
name  of  the  defendant  in  the  suit  appear  therein.  Without 
this,  such  bond  is  a  nullity ;  and  the  omJssion  can  not  be 
supplied  by  averment  and  proof,  (s) 

In  an  action  on  a  replevin-bond,  the  plaintiff  is  at  liberty 
to  go  into  the  question  of  damages  for  the  detention  of  the 
property,  but  he  is  not  obliged  to  do  so.  He  may  abide 
by  the  assessment  in  the  replevin-suit,  and  take  a  verdict 
in  the  pending  suit  merely  for  the  value  of  the  property. 
But  if  the  plaintiff,  in  the  action  on  the  bond,  in  fact  intro- 
duces evidence  as  to  the  damages  for  the  detention  of  the 

(m)  22  111.  205;  2  Scam.  539. 

(«)  3  M.  &  S.  180;  2  Chit.  PI.  459,  n. 

(o)  3  Taunt.  81 ;   i  Bing.  6;  2  Chit.  PI.  458,  n. 

(^)  B.  &  C.  284;  2  Scam.  6,  544;  3  M.  &  S.  180;  2  Chit.  PI.  461,  n. 

(y)  4  Bing.  586;  2  Chit.  Pi.,  n  Am.  ed.  461,  n. 

(r)  43  111.  442.  . 

(5)  54  111.  228. 


DEBT.  343 

Declaration  on  a  sheriff's  bond. 

property,  the  judgment  in  that  case,  when  satisfied,  will  be 
a  bar  to  a  scire  facias  to  revive  a  judgment  rendered  for 
damages  in  the  action  of  replevin.  (/) 

It  is  said  that  in  an  action  on  a  replevin-bond,  evidence 
is  admissible  of  dam^ages  sustained  by  reason  of  the  deten- 
tion of  the  property  before  the  awarding  of  a  return.  (?f) 

No.  159.      On  a  sheriff^ s  bond — -foj-  a  faiUirc  by  the  shei'i^ 
to  Diake  the  amount  of  an  execution. 

In  the  Circuit  Court. 

Term,  18 — . 

State  of  Illinois, 


County  of  ,       5     set.     The  People  of  the  state  of 

Illinois,  plaintiff,  which  sues  in  this  behalf  for  the  use  of 
A.  B.,  complains  of  C.  D.,  E.  F.  and  G.  H.,  defendants, 
of  a  plea  that  they  render  to  the  plaintifi",  for  the  use  afore- 
said, the  sum  of  ten  thousand  dollars,  which  they  owe  to 
and  unjustly  detain  from  the  plaintiff:  For  that  whereas 
the  defendants,  on,  etc.,  in,  etc.,  by  their  writing  obliga- 
tory, bearing  date  of  that  day,  jointly  and  severally  ac-- 
knowledged  themselves  to  be  held  and  firmly  bound  unto 
the  plaintiff  in  the  sum  of  ten  thousand  dollars  above  de- 
manded, to  be  paid  to  the  plaintifi';  which  said  writing 
obligatory  was  and  is  subject  to  a  certain  condition  there- 
under written,  whereby,  after  reciting  to  the  effect  that  the 
said  C.  D.  had  been  duly  elected  sheriff  of  the  county  of 

aforesaid,  it  was  provided  tha-t  if  he  the  said  CD. 

should  faithfully  discharge  all  the  duties  required  or  to  be 
required  of  him  by  law,  as  such  sheriff',  then  the  said  writ- 
ing obligatory  was  to  be  void,  otherwise  to  remain  in  full 
torce  ;  as  by  the  said  writing  obligator}^  and  the  said  con- 
dition thereof,  remaining  affiled  in  the  said  Circuit  Court 
of  the  county  aforesaid,  will  appear :  And  the  said  writing 
obligatory  afterwards,  and  within  thirty  days  after  notice 
to  the  said  C.  D.  of  his  commission  as  such  sheriff',  to  wit, 

on,  etc.,  in  the  term  of  the  said  court,  in  the  same 

year,  was  approved  by  the  judge  of  the  said  court,  and 
became  the  otHcial  bond  of  the  said  C.  D.,  as  such  sheriff' 
as  aforesaid  ;  and  thereupon  he  the  said  C.  D.  then  and 

W  41  III.  76. 

\it)   lb.     See  80  111.  513;    82  111.  240;    2  Starr  &  Curlis'  An.  Stat.    2017;   13 
bradw.  17. 


344  DEBT. 

Declaration  on  a  sheriff's  bond. 

there  took  and  subscribed,  before  the  clerk  of  the  said 
court,  the  several  oaths  required  by  law,  and  an  oath  for 
the  faithful  performance  of  the  duties  of  his  said  otiice  of 
sheriff,  and  took  upon  himself  the  performance  of  those 
duties,  and  thenceforth  has  been,  and  still  is,  sheriff  of  the 
county  aforesaid.  Yet  the  plaintiff  in  fact  says,  that  the  said 
C.  D.  has  not  faithfully  discharged  all  the  duties  required 
of  him  by  law  as  such  sheriff,  but  has  neglected  and  re- 
fused so  to  do,  to  the  injury  of  the  said  A.  B.  And  for 
assigning  a  breach  of  the  said  condition  of  the  said  writino; 
obligatory,  the  plaintiff  says,  that  the  said  A.  B.,  on,  etc., 
in  the term  of  the  said  court,  in  that  year,  by  the  con- 
sideration and  judgment  of  the  said  court  recovered  against 

one  J.  K.  the  sum  of dollars  damages,  and  the  costs 

of  the  said  A.  B.  in  that  behalf,  whereof  the  said  J.  K.  was 
convicted  ;  and  for  obtaining  satisfaction  of  the  said  dam- 
ages and  costs,  the  said  A.  B.  afterwards,  to  wit,  on,  etc., 
sued  out  of  the  said  court  a  certain  writ  of  fieri  facias^ 
directed  to  the  sheriff  of  the  county  aforesaid,  whereby  the 
said  people  commanded  such  sheriff  that  of  the  goods  and 
chattels,  lands  and  tenements,  in  his  county,  of  the  said 
J.  K.,  such  sheriff  should  cause  to  be  made  the  damages 

aforesaid,  and  the  sum  of dollars,  the  costs  aforesaid, 

together  with  interest  thereon,  at  the  rate  of  six  per  centum 
per  annum,  from  the  time  of  recovering  the  same  as  afore- 
said, and  also  the  further  sum  of ,  accruing  costs 

on  the  said  judgment,  and  that  such  sheriff  should  have 
those  moneys  ready  to  render  to  the  said  A.  B.,  according 
to  law,  and  should  make  return  of  the  said  writ  in  ninety 
days  after  the  date  thereof;  which  said  writ,  on  the  day 
last  aforesaid,  was  there  delivered  to  the  said  C.  D.,  so 
being  such  sheriff  as  aforesaid,  to  be  executed  :  And  al- 
though there  were  then  and  afterwards,  before  and  on  the 
return-day  of  the  said  writ,  divers  goods  and  chattels,  lands 
and  tenements,  of  the  said  J.  K.,  within  the  county  atore- 
said,  subject  to  execution,  out  of  which  the  said  C.  D. 
might  and  ought  to  have  caused  to  be  made  the  said 
moneys,  as  by  the  said  writ  he  was  commanded,  whereof 
he  then  and  there  had  notice ;  yet  the  said  C.  D.,  not  re- 
garding the  duties  of  his  said  office,  did  not  nor  would, 
before  or  on  the  return-day  of  the  said  writ,  cause  to  be 
made  those  moneys,  or  an}-  part  thereof,  but  wholly  neg- 
lected so  to  do,  nor  did  nor  would  he  make  return  of  the 


DEBT.  345 

Declaration  on  a  sheriff's  bond. 

said  writ,  as  he  was  therein  commanded,  (although  the 
return-day  thereof  has  long  since  elapsed,)  but  has  hitherto 
neglected,  and  still  neglects,  so  to  do.  By  means  of  which 
j>remises  the  said  A.  B.  has  been  and  is  deprived  of  the 
means  of  obtaining  the  said  moneys  so  commanded  to  be 
levied  as  aloresaid,  and  which  are  still  wholly  unpaid  ;  and 
thereby  an  action  has  accrued  to  the  plaintiff  to  demand 
ot  the  defendants,  for  the  use  aforesaid,  the  said  sum  often 
thousand  dollars  above  demanded :  Yet  the  defendants, 
though  requested,  have  not  paid  that  sum,  or  an}^  part 
thereof,  to  the  plaintiff,  but  refuse  so  to  do ;  to  the  damage 

of  the  plaintiff^  for  the  use  aforesaid,  of dollars,  and 

therefore  the  plaintiff,  for  the  use  aforesaid,  brings  suit,  etc. 

If  the  execution  has  been  returned  "no  property,"  then, 
in  lieu  of  the  allegation  that  the  sheriff  did  not  return  the 
writ,  the  pleader  may  insert — "and  on,  etc.,  falsely  and 
deceitfully  returned  to  the  said  court,  upon  the  said  writ,  to 
the  effect  that  in  his  county  the  said  J.  K.  had  no  goods  or 
chattels,  lands  or  tenements,  whereof  he  the  said  C.  D. 
could  cause  to  be  made  those  moneys,  or  any  part  of  the 
same." 

If  the  sheriff  has  made  the  amount  of  the  execution,  but 
neglected  to  pay  it  over,  and  has  falsely  returned  "no 
property,"  then  after  alleging  the  delivery  of  the  writ,  the 
pleader  may  aver  as  follows:  "By  virtue  of  which  said 
writ  the  said  C.  D.,  as  such  sheriff  as  atbresaid,  afterwards, 
to  wit,  on,  etc.,  there  caused  to  be  made  the  said  moneys 
so  by  the  said  writ  commanded  to  be  levied  as  aforesaid  ; 
yet  the  said  C.  D.,  not  regarding  his  duty  as  such  sheriff, 
had  not  those  moneys,  or  any  part  thereof,  ready  to  render 
to  the  said  A.  B.,  at  the  return  of  the  said  writ,  according 
to  the  exigency  thereof,  but  therein  wholly  failed,  nor  has 
the  said  C.  D.  paid  those  moneys,  or  any  part  thereof,  to 
the  said  A.  B.  ;  and  on,  etc.,  the  said  C.  D.  falsely  and 
deceittuU}'  returned,"  etc. 

In  an  action  (on  the  case)  against  a  sheriff,  for  failing 
to  make  the  amount  of  an  execution,  the  declaration  con- 


346  DEBT. 

Declaration  on  a  sheriff's  bond. 

tained  two  counts,  the  first  averring  in  substance  that  the 
sheriti'  took  certain  personal  property  in  execution,  but  did 
not  make  the  money  out  of  the  same,  and  "wrongfully, 
falsely  and  deceitfully"  returned  upon  the  writ  that  the  suit 
having  been  appealed,  as  per  bond  and  the  order  of  the 
court  thereto  annexed,  the  writ  was  returned  in  no  part 
satisfied  ;  and  the  second  count  averring  in  substarfce  that 
the  defendant  in  execution  had  personal  property  which 
the  sheriff  might  have  taken,  whereof  he  had  notice,  but 
that  he  neglected  and  refused  so  to  do,  and  "wrongfully, 
falsely  and  deceitfully"  returned  the  writ  as  alleged  in  the 
first  count.  The  court  said,  that  the  gist  of  this  action  was 
that  the  sheriff  neglected  his  duty  in  tailing  to  seize  prop- 
erty, or,  having  seized  property,  in  failing  to  sell  it  and 
make  the  money ;  and  that  the  matter  of  the  return  was 
not  essential,  (v) 

It  is  perhaps  unnecessary  to  allege  the  taking  ol  the 
oaths  by  the  sheriff,  (za)  In  an  action  on  an  appeal-bond, 
it  is  held,  the  approval  of  the  bond  need  not  be  aver- 
red, (x) 

Where  a  person  was  elected  a  justice  of  the  peace,  and 
within  the  required  time  gave  a  bond,  which  was  detective 
in  its  condition,  and  alter  the  expiration  of  the  required 
time  he  gave  another  bond,  which  was  good, — it  was  held 
that  the  former  bond  being  in.sufficient,  and  the  latter  not 
having  been  given  in  time,  the  olhce  became  vacant,  [y) 

The  fact  that  the  oflicial  bond  of  a  constable  was  not 
given  until  some  nineteen  months  after  his  election,  will 
not  affect  the  validity  of  the  bond.  It  will  be  presumed, 
from  the  mere  fact  of  its  execution,  that  such  bond  was 
given,  under  the  statute,  because  the  sureties  in  a  former 
bond  were   insufficient ;    and  in   declaring  on    a  bond  so 

iv)  48  111.  525. 

(w)  1  Swan's  Pr.  368/5. 
(a;)  22  111.  91. 
(j)  3  Gilm.  59. 


DEBT.  347 

Declaration  on  a  sheriff's  bond. 

given,  it  is  not  necessary  to  set  out  the  order  of  the  proper 
authority  requiring  the  same,  (z) 

If  an  officer,  in  whose  hands  an  execution  is  placed,  so 
dehiys  making  a  proper  seizure  of  property,  without  the 
consent  of  the  creditor,  that  the  rights  of  other  parties  in- 
tervene, the  creditor  has  his  remedy  against  die  officer,  (a) 

In  an  action  against  a  sheriff  lor  laiHng  to  make  the 
money  on  an  execution,  the  damages  are  not  necessarilv 
the  amount  of  the  execution,  but  only  such  damages  as  the 
plaintiff  actually  suffers  by  the  sheriff's  neglect,  (d) 

Where  a  sheriff  accepts  an  assignment  of  a  chattel  mort- 
gage as  collateral  security  for  the  payment  of  a  judgment, 
upon  which  he  has  an  execution  in  his  hands,  the  plaintiff 
in  execution,  being  ignorant  of  the  assignment,  is  not  bound 
by  the  action  of  the  sheriff.  The  latter  can  only  accept 
money  in  satisfaction  of  an  execution,  (c) 

An  officer  having  an  execution  must  use  due  dilio-ence 
to  make  the  amount  thereof  out  of  the  property  of  the  de- 
fendant in  his  county,  {d}' 

In  determining  the  amount  of  property  necessary  to  be 
taken  to  satisfy  an  execution,  the  officer  should  make  an 
allowance  for  the  sacrifice  usualh^  incident  to  forced  sales. 
And  in  an  action  against  a  sheriff  for  failing  to  collect  the 
amount  of  an  execution,  it  is  no  defense  that  the  sheriff  had 
reasonable  grounds  to  believe,  and  did  believe,  that  he  had 
seized  sufficient  property.  He  must  be  able  to  show  that 
he  used  such  diligence  as  prudent  men  use  in  the  manao-e- 
m.ent  of  their  own  business.  And  while  he  ought  to  take 
property  enough,  at  the  same  dme  he  should  not  make  a 
seizure  so  excessive  as  to  bear  on  its  face  the  appearance 
of  oppression  and  unnecessary  rigor,  (e) 

(z)  54  III.  163. 
(a)  31  111.  120. 

(*)  30  111-  339- 

(c)  28  111.  48. 

(d)  4  Scam.  328;  Breese.  401 ;  31  III.  120:  48  111.  525. 

(e)  30  111.  339;  37  Penn.  State  R.  1S7;  10  N.  Y.  (6  Selden,)  39S;  3  Bibb 
359;  7  C.  Men.  29S;  5  Eng.  (Ark.j  28. 


348  DEBT. 

Declarations  on  guardians'  bonds. 

An  officer  who  should  refuse  to  proceed  upon  a  second 
execution,  where  the  first  had  been  stayed  by  an  agree- 
ment between  the  parties  to  it,  would  be  liable  for  a  false 
return.  {/) 

A  fee-bill  is  "process,''  and  has  the  effect  of  an  execu- 
tion ;  (  »■)  and  if  an  officer  neglects  to  return  such  process 
within  ninety  days  from  its  date,  he  becomes  liable  to  pay 
the  amount  of  the  same.  (/^) 

The  right  of  action  of  a  judgment-creditor  against  a 
sheriff  for  not  levying  a  fi-  fa.  is  not  taken  away  b}^  a  dis- 
charge of  the  debtor,  by  the  creditor,  from  a  ca.  sa.  issued 
at  his  instance,  (although  such  a  discharge  might  be  a  sat- 
isfaction of  the  judgment,)  where  the  creditor's  right  of 
action  against  the  sheriff  w-as  perfect  before  such  dis- 
charge,   (yi) 

On  the  subject  of  the  liabilit}-  of  sheriffs,  see  the  addi- 
tional Illinois  cases  noted  below.  (/) 

No.  i6o.      On  a  gtiardiaii's  bond— for  the  use  of  the  zvard^ 
after  coming  of  age. 

(  Commence  as  in  last  ^precedent.)     For  that  whereas  in 

the term,  in  the  year  i8 — ,  of  the  County  Court  of  the 

county  aforesaid,  to  wit,  on,  etc.,  in  that  year,  the  said 
(A.  B.,  then  a  minor  above  the  age  of  fourteen  3-ears,  per- 
sonally appeared  before  that  court,  and  made  choice  of  the 
said  C.  D.  as  his  guardian  ;  and  thereupon  the  said  C.  D. 
was  b}^  the  same  court  then  and  there  approved  and  ap~ 
pointed  as  guardian  of  the  person  and  estate  of  the  said 
A.  B.  ;  and  the  same  court  then  and  there  took  and  ap- 
proved a  bond  of  the  said  C.  D.,  with  the  said  E.  F.  and 
G.  H.  as  two  sufficient  sureties,  in  double  the  amount  ot 
the  real  and  personal  estate  of  the  said  A.  B.,  according 
to  the  form  of  the  statute,  etc.  :  And  on  that  occasion  they 

(/)  Breese,  401 ;  26  111.  ?2i ;  15  Ind.  43.     See  31  111,    2\ 
'g-)  2  Cilm.678;  5  Gilm.  96;   17  111.  344. 
(h)  4  Scam.  360;  3  Met.  (Ky.)  1S4;  24  Texas,  12. 
(/)  Breese,  401. 

{/)  4  Scam.  560;  2  Gilm.  731 ;  4  Gilm.  99;  5  Gilm.  321 ;  20  111.  133;  24 
111.  570;  46  111.  398;  50  111.  195. 


DEBT.  349 

Declarations  on  guardians"  bonds. 

the  said  C.  D.,  E.  F.  and  G.  H.,  defendants,  then  and 
there,  by  their  writing  obligatory,  bearing  date  of  that  da}', 
jointly  and  severally  acknowledged  themselves  to  be  held 
and  firmly  bound  unto  the  plaintiff  in  the  sum  of  dol- 
lars above  demanded,  to  be  paid  to  the  plaintiff;  which 
said  writing  obligatory  was  and  is  subject  to  a  certain  con- 
dition thereunder  written,  to  the  effect  that  if  the  said  C. 
D.  should  faithfully  discharge  the  office  and  trust  of  such 
guardian  of  the  said  A.  B.,  according  to  law,  and  should 
make  a  true  inventory  of  all  the  real  and  personal  estate 
of  the  said  A.  B.  that  should  come  to  the  possession  or 
knowledge  of  the  said  C.  D.,  and  return  the  same  unto  the 
said  County  Court,  at  the  time  required  by  law,  and  should 
manage  and  dispose  of  all  such  estate  according  to  law 
and  tor  the  best  interest  of  the  said  A.  B.,  and  should 
faithfully  discharge  his  the  said  C.  D.'s  trust  in  relation 
thereto  and  to  the  custody,  nurture  and  education  of  the 
said  A.  B.,  and  should  render  an  account  on  oath  of  the 
property  in  the  hands  of  him  the  said  C.  D.,  including  the 
proceeds  of  all  real  estate  that  might  be  sold  by  him,  if 
any,  and  of  the  management  and  disposition  of  all  such^ 
estate,  within  one  year  after  his  said  appointment,  and  at 
such  other  time  as  should  be  required  by  law  or  directed 
by  the  court,  and  upon  his  removal  from  office,  or  at  the 
expiration  of  his  said  trust,  should  settle  his  accounts  in 
that  court,  or  with  the  said  A.  B.  or  his  legal  representa- 
tives, and  pay  over  and  deliver  all  the  estate,  title-papers 
and  effects  remaining  in  his  the  said  C.  D.'s  hands,  or  due 
from  him  on  such  settlement,  to  the  person  or  persons  law- 
fully entitled  thereto,  then  the  said  writing  obligatory  should 
be  void,  and  otherwise  should  remain  in  full  force  and  vir- 
tue ;  as  by  the  said  writing  obligatory  and  the  said  condi- 
tion thereof,  remaining  affiled  in  the  said  County  Court,  will 
appear  :  (*)  And  thereupon  the  said  C.  D.  then  and  there 
took  upon  himself  the  said  office  and  trust  of  guardian  of 
the  said  A.  B.,  and  thenceforth  was  such  guard; an  until 

the day  of,  etc.,  when  the  said  A.  B.  attained  his  age 

of  twenty-one  years.  Yet  the  plaintiff  in  fact  says,  that 
the  said  C.  D.  did  not  faithfully  discharge  the  said  office 
and  trust  of  guardian  of  the  said  A.  B.,  according  to  law, 
but  neglected  and  refused  so  to  do,  to  the  injury  of  the  said 
A.  B.  And  for  assigning  a  breach  of  the  said  condition 
ot  tlie  said  writing  obligator}-,  the  plaintifT  says, that  after 


350  DEBT. 

Declarations  on  guardians'  bonds. 

the  said  appointment  of  the  said  C.  D.  as  such  guardian, 
and  the  making  of  the  said  writing  obligatory,  as  aforesaid, 
and  before  the  da}^  last  mentioned,  divers  rents  accruing 
from  the  real  estate  of  the  said  A.  B.,  amounting  to  a  large 

sum  of  money,  to  wit,  dollars,  came  to  the  hands  of 

the  said  C.  D.  as  such  guardian;  yet  the  said  C.  D.,  not 
regarding  his  duty  as  such  guardian,  during  that  time  there 
converted  and  disposed  of  the  said  rents  to  his»own  use, 
and  has  neglected  and  refused,  and  still  neglects  and  re- 
fuses, to  pay  over  to  the  said  A.  B.  the  amount  of  the  said 
rents,  or  any  part  thereof,  although  he  the  said  A.  B.,  on 
the  day  last  aforesaid,  was  there  lawfully  entitled  thereto, 
and  the  said  CD.  was  then  and  there  requested  to  pay 
over  the  same  to  him  the  said  A.  B.  And  for  assigning  a 
further  breach  of  the  said  condition  of  the  said  writing  ob- 
ligator}',  the  plaintiff  says,  that  {here  set  out  any  other  act 
or  omission  constituting  a  breach  of  the  condition  of  the 
bond).  By  means  of  which  premises  an  action  has  ac- 
crued to  the  plaintiff  to  demand  of  the  defendants,  for  the 

use  aforesaid,  the  said  sum  of dollars  above  demanded  : 

Yet  the  defendants,  though  requested,  have  not  paid  to  the 
plaintiff  that  sum  of  money,  or  any  part  thereof,  but  refuse 
so  to  do  ;  to  the  damage  of  the  plaintiff,  for  the  use  afore- 
said, of dollars,  and  therefore,  for  the  use  aforesaid, 

the  plaintiff  brings  suit,  etc. 

It  is  suggested  that  the  declaration  might  be  somewhat 
more  concisely  framed,  as  follows  : 

For  that  whereas  the  defendants,  on,  etc.,  in,  etc.,  by 
iheir  writing  obligatory,  bearing  date  of  that  day,  jointly 
and  severally  acknowledged  themselves  to  be   held  and 

lirml}'  bound  unto  the  plaintiff  in  the  sum  of dollars 

above  demanded,  to  be  paid  to  the  plaintiff;  which  said 
writing  obligatory  was  and  is  subject  to  a  certain  condition 
thereunder  written,  to  the  effect  that  if  the  said  C.  D.,  who 
had  been  appointed  guardian  of  the  said  A.  B.,  should 
faithfully  discharge  tlie  office  and  trust,  etc.  {setting  out 
the  condition,  as  in  the  above  precedent) ;  as  by  the  said 
writing  obligatory  and  the  said  condition  thereof,  remain- 
ing affiled  m  the  same  court,  will  appear :  And  although 
the  said  C.  D.  then  and  there  took  upon  himself  the  said 
office  and  trust  of  guardian  of  the  said  A.  B.,  as  in  the  said 


DEBT.  351 

Declarations  on  guardians'  bonds. 

condition  mentioned,  and  thenceforth  was  sucli  guardian 

nr;.til  the day  of,  etc.,  when  the  said  A.  B.  became  of 

full  age ;  nevertheless  the  plaintiff  in  fact  sa^'S,  that  the 
said  C.  D.  did  not  faithfully  discharge  his  said  office  and 
trust,  etc.  {proceeding  as  in  the  above  -precedent.) 

JSfo.  161.      On  a  guardian's  bond — -for  the  use  of  the  suc- 
cessor of  a  guardian  who  has  been  removed. 

(^Title  of  coiirt.,  etc.,  as  in  JVo.  147,  ante.)  The  Peo- 
ple of  the  state  of  Illinois,  plaintiff,  which  sues  in  this 
behalf  for  the  use  of  J.  K.,  complaixs  of  C.  D.,  E.  F.  and 
G.  H.,  defendants,  of  a  plea  that  they  render  to  the  plaint- 
iff, for  the  use  aforesaid,  the  sum  of dollars,  which 

they  owe  to  and  unjustly  detain  from  the  plaintiff:     For 

that  whereas   in  the term,  in  the  year  18 — ,  of  the 

County  Court  of  the  county  aforesaid,  to  wit,  on,  etc.,  in 
that  year,  one  A.  B.  {-proceed  as  in  A^o.  160,  to  the  aster- 
isk) :  And  thereupon  the  said  C.  D.  then  and  there  took 
upon  himself  the  said  office  and  trust  of  guardian  of  the 
said  A.  B.,  and  thenceforth  was  such   guardian  until  the 

day  of,  etc.,  when  he  the  said  C.  D.  was  b}"  the  same 

court  removed  from  his  said  office  and  trust,  and  the  said 
J.  K.  was  duly  appointed  and  qualified,  and  thenceforth 
has  been,  and  still  is,  guardian  of  the  person  and  estate  of 
the  said  A.  B.  And  the  plaintiff  in  fact  says,  that  the  said 
C.  D.  did  not  faithfully  discharge  the  said  office  and  trust 
of  guardian  of  the  said  A.  B.,  according  to  law,  but  neg- 
lected and  refused  so  to  do,  to  the  injury  of  the  said  J.  K. 
And  for  assigning  a  breach  of  the  said  condition  of  the  said 
writing  obligatory,  the  plaintiff  sa3's,  that  {here  set  out  any 
particular  act  or  omission  constituting  a  breach).  And 
for  assigning  a  further  breach  of  the  said  condition  of  the 
said  writing  obligatory,  the  plaintiff  says,  that  {here  set 
out  any  other  breach).  By  reason  of  which  said  breaches 
the  said  writing  obligatory  became  forfeited,  and  thereby 
an  action  has  accrued,  etc.  {concluding  as  in  JVo.  160.) 

In  the  case  of  Bond  v.  Lockzuood,  33  111.  212,  (186-1,) 
the  coi.rt  says  that  the  etatute  in  relation  to  guardians  does 
not  constitute  a  complete  code,  but  confers  upon  the  County 
Court  power  to  appoint  guardians,  and  to  regulate  their 
conduct  in  accordance  with  their  duties  at  common  law. 


35 -i  DEBT. 

On  guardians'  bonds — Observations. 

Many  of  the  powers  and  duties,  rights  and  liabilities  of 
guardians  are  not  specifically  defined  by  the  statute.  It 
contains  such  provisions  as  were  necessary  to  define  the 
nature  of  the  jurisdiction  conferred,  prescribe  the  manner 
of  its  exercise,  and  correct  some  of  the  defects  of  the  law 
as  it  then  existed.  In  other  respects  the  common  law  is 
left  in  force. 

See  the  same  case  for  a  discussion  of  the  powders,  rights, 
duties  and  liabilities  of  guardians. 

If  a  guardian  buys  land  with  the  ward's  money,  the  w^ard 
ma}^  elect  to  take  the  land,  or  consider  it  as  a  security  for 
the  money.  (/;) 

It  is  held  that  if  a  guardian  converts  money  of  his  ward 
to  his  own  use,  he  is  chargeable  with  compound  interest.  (/) 
In  Illinois,  by  statute,  a  guardian  is  chargeable  wdth  in- 
terest upon  any  money  which  he  wrongfully  or  negligently 
allows  to  remain  in  his  hands  uninvested  after  the  same 
might  have  been  invested.  (;;/) 

Guardianship  of  a  female  ward  determines  on  her  mar- 
riage ;  otherwise  of  males,  (n)  By  the  statute  of  Illinois, 
the  marriage  of  a  female  ward  discharges  her  guardian 
from  all  right  to  her  custody  and  education,  but  not  to  her 
property,  [o) 

See  the  statute  of  Illinois  concerning  guardians  and 
wards,  and  the  additional  cases  noted  below,  (p) 

(A-)  Dana,  223;  15  Ohio,  655. 

(/)  14  111.  I ;  I  J.  C.  620;  10  Pick.  78;  5  Dana,  77;  !  Am.  Lead.  Cas.  36.^. 

(m)  Rev.  Stat.  (1874)  561;  2  Rev.  Stat.  (1877)  539. 

(«)   I  Ves.  Sen.  159,  note. 

{o).Rev.  Stat.  (1874)  562;  Rev.  Stat.  (1877)  541. 

(/)  Rev.  Stat.  (1S77)  537;4  Scam.  127;  i  Gilm.  173;  3  Gilm.  435  ;  5  Gilm. 
196;  11111.625,642;  12  III.  424;  15  111.10,62.  187,444,481;  19111.29,; 
21  111.443;  23  111.  43;  27  111.  148,387;  29  111.  165,482;  34  111.  112;  41  Hi. 
391  ;  43  111.  18;  46  111.  303;  47  111.  25;  49  111.  473;   82  111.  84. 


DEBT.  353 

Dech  ration  on  an  administrator's  bond. 

No.  162.      On  an  administrator'' s  hand. 

[Commence  as  in  No.  159,  ante.)     For  that  whereas  in 

the term,  in  the  3'ear  18 — ,  of  the  County  Court  of  the 

county  aforesaid,  to  wit,  on,  etc.,  in  that  year,  the  said 
C.  D.  was  by  the  same  court  appointed  administrator  of  the 
estate  of  one  J.  K.,  deceased,  and  w^as  then  and  there  duly 
quahfied  as  such  administrator ;  and  the  said  C.  D.  then 
and  there  entered  into  bond,  with  the  said  E.  F.  and  G.  H. 
as  two  sufficient  sureties,  in  double  the  value  of  the  said 
estate,  according  to  the  form  of  the  statute,  etc.  :  And  on 
that  occasion  the  defendants  then  and  there,  b}^  their  writinn- 
obligatory,  bearing  date  of  that  day,  jointly  and  severally 
acknowledged  themselves  to  be  held  and  firmly  bound  unio 

the  plaintifl'  in  the  penal  sum  of dollars,  current  money 

of  the  United  States,  to  be  paid  to  the  plaintiff:  which  said 
writing  obligatory  was  and  is  subject  to  a  certain  condition 
thereunder  written,  to  the  effect  that  if  the  said  C.  D.,  ad- 
ministrator of  all  and  singular  the  goods  and  chattels,  rights 
and  credits  of  the  said  J.  K.,  deceased,  should  make  or 
cause  to  be  made  a  true  and  perfect  inventory  of  all  and 
singular  the  goods  and  chattels,  rights  and  credits  of  the 
said  deceased  which  should  come  to  the  hands,  possession 
or  knowledge  of  him  the  said  C.  D.,  as  such  administrator, 
or  to  the  hands  of  any  person  or  persons  for  him, — and  the 
same  zo  made  should  exhibit  or  cause  to  be  exhibited  in  the 
said  County  Court,  agreeably  to  law, — and  such  goods  and 
chattels,  rights  and  credits  should  well  and  trul}'  adminis- 
ter according  to  law, — and  all  the  rest  of  the  said  goods 
and  chattels,  rights  and  credits  which  should  be  found  re- 
maining upon  the  account  of  the  said  administrator,  the 
same  being  first  examined  and  allowed  by  the  court,  should 
deliver  and  pay  unto  such  person  or  persons  respectively  as 
might  be  legally  entitled  thereto, — and  further  should  make 
a  just  and  true  account  of  all  his  actings  and  doings  therein, 
when  thereunto  required  by  the  same  court, — and  if  it 
siiould  appear  that  any  last  will  and  testament  was  made  by 
the  said  deceased,  and  the  same  should  be  proved  in  court, 
and  letters  testamentar}'  or  of  administration  be  obtained 
thereon,  the  said  C.  D.  in  such  case,  on  being  required 
thereto,  should  render  and  deliver  up  the  letters  of  admin- 


354  DEBT. 

On  administrator's  bond — Observations. 

istratiofi  granted  to  him  as  aforesaid, — and  should  in  gen- 
eral do  and  perform  all  other  acts  which  might  at  any  time 
be  required  of  him  b}"^  law, — then  the  said  obligation  was  to 
be  void,  and  otherwise  to  remain  in  full  force  and  virtue  ; 
as  by  the  said  writing  obligator}^  and  the  said  condition 
thereof,  remaining  affiled  in  the  same  court,  will  appear  : 
And  thereupon  the  said  C.  D.  then  and  there  took  upon 
himself  the  administration  of  the  said  estate,  and  thence- 
forth has  been,  and  still  is,  such  administrator  as  aforesaid. 
Yet  the  plaintiff"  in  fact  says,  that  the  said  C.  D.  has  not 
faithfully  discharged  the  duties  of  his  said  office  of  admin- 
istrator, according  to  the  said  condition  of  the  said  writing 
obligatory,  but  has  neglected  and  reiused  so  to  do,  to  the 
injury  of  the  said  A.  B.  And  for  assigning  a  breach  of 
the  said  condition,  the  plaintiff  says,  that  heretofore,  in  the 

term,  in  the  year  i8 — ,  of  the  said  County  Court,  to 

wit,  en,  etc.,  in  that  year,  by  the  consideration  of  the  same 
court  the  said  A.  B.  recovered  against  the  said  estate  of  the 

said  J.  K.,  deceased,  the  sum  of dollars,  to  be  paid  in 

due  course  of  administration,  as  a  debt  of  the class  ;  (*) 

and  although  at  and  since  that  time  divers  moneys  and  ef- 
fects belonging  to  the  said  estate  were  and  have  been  in  the 
hands  of  the  said  C.  D.  as  such  administrator,  out  of  which 
moneys  and  effects  the  amount  of  the  said  judgment  might 
and  ought  to  have  been  paid  to  the  said  A.  B.,  yet  the  said 
C.  D.  has  not  paid  the  same,  or  any  part  thereof,  to  the  said 
A.  B.,  but  has  wasted  the  said  monej's  and  effects,  and  con- 
verted and  disposed  of  the  same  to  his  the  said  C.  D.'s  own 
use.  And  for  assigning  a  further  breach  of  the  said  con- 
dition of  the  said  writing  obligatory,  the  plaintiff  says,  that 
{here  set  out  any  other  matter  constituting  a  breach^  as  that 
the  administrator  did  not  make  and  exhibit  an  inventory, 
etc.)  By  means  of  which  premises  the  said  writing  obliga- 
tory has  become  forfeited,  and  thereby  an  action  has  ac- 
crued, etc.  {concluding  as  in  No.  i6o,  ante.) 

The  matters  of  inducement  might  perhaps  be  omitted, 
and  the  declaration  proceed  directly  to  a  statement  of  the 
bond  and  condition,  as  suggested  under  form  No.  i6o, 
ante;  after  which  the  declaration  might  proceed;  "Anr. 
although  the  said  C.  D.  thereupon  then  and  there  took 
upon  himself  the   administration  of  the  said  estate,  as  in 


DEBT. 355 

On  administrator's  bond — Observations — Devastavit,  etc. 

the  said  condition  mentioned,  and  thenceforth  has  been, 
and  still  is,  such  administrator  as  aforesaid  ;  nevertheless 
the  plaintiff  in  fact  sa3's,  that  the  said  CD.  has  not  faith- 
fully discharged  his-  duties  as  such  administrator,  accord- 
ing to  the  said  condition,  but  has  neglected  and  refused  so 
to  do,  to  the  injury,"  etc. 

Section  132  of  the  statute  of  wills  of  1829,  (Revised 
Laws  of  Illinois,  653,  R.  S.  564,  sec.  137,  Gross'  Stat. 
825,)  provided  that  a  failure  on  the  part  of  any  executor 
or  admmistrator  to  comply  with  the  statute,  or  his  bond, 
should  be  a  sufficient  breach  to  authorize  a  recovery  against 
him  or  his  sureties,  or  botli,  "in  the  same  manner  as  though 
a  devastavit  had  been  previously  established  against  such 
executor  or  administrator."  {q)  This  section,  and  the  121st 
of  the  same  act,  (providing  that  a  failure  by  an  executor  or 
administrator  to  pay  over  moneys,  when  oi"dered,  should 
be  deemed  a  devastavit — R.  L.  650,  R.  S.  562,  sec.  126, 
Gross'  Stat.  823 — )  are  repealed  by  the  act  of  1872,  and  are 
not  re-enacted  or  embodied  in  that  act.  {r)  Bet'ore  the  act 
of  1829,  ^t  was  held  that  an  action  could  not  be  maintained 
on  an  administrator's  bond  until  a  devastavit  had  been  first 
established,  by  judgment  or  decree,  against  the  adminis- 
trator. (5) 

It  is  not  essential  to  a  right  of  recovery  that  a  devastavit 
shall  have  first  been  established  against  the  administrator. 
Since  the  case  of  Briggs  v.  Postlewaite ,  Breese,  198,  a  statute 
has  been  passed  which  dispenses  with  proof.  If  a  devastavit, 
in  all  actions  on  bonds  of  execution  and  administrators,  {x) 

A  devastavit  may  be  alleged  in  the  following  manner — pro- 
ceeding thus  from  the  asterisks  in  the  above  form  : 

And  the  said  judgment  still  remaining  whollv  unsatis- 
fied, the  said  A.  B.  afterwards  impleaded  the  said  C.  D.  in 

{jj)  I  Scam.  83. 

(r)  Rev.  Stat.  (1S77)  690. 

\s)  Breese,  19S,  252,  254;   i  Mumf.  i;   2  Munf.  24;   i  Wash.  31. 

(.»■)  87  111.  76. 


35<5  DEBT. 

On  administrator's  bond — Observations — Devastavit^  etc. 


the  said Court,  to  the  term  thereof,  in  uie  same 

year,  and  declared  against  him  in  a  plea  of  debt,  alleging 
the  said  judgment ;  and  in  and  by  his  declaration  in  that 
behalf  the  said  A.  B.  averred,  that  at  the  time  of  the  re- 
covery aforesaid  divers  goods,  chattels  and  mone3^s  which 
were  of  the  said  J.  K.,  at  the  time  of  his  death,  of  great 
value,  to  wit,  of  the  value  of  the  sum  of  money  so  recov- 
ered as  aforesaid,  had  come  to  the  hands  of  the  said  C.  D., 
as  administrator  as  aforesaid,  to  be  administered,  which 
said  goods,  chattels  and  moneys  the  said  C.  D.  afterwards, 
to  wit,  on,  etc.,  there  eloigned,  wasted,  and  disposed  of 
and  converted  to  his  own  use,  etc.  ;  and  such  proceedings 
were  thereupon  had  in  that  plea,  that  in  the  same  term, 
to  wit,  on,  etc.,  by  the  consideration  of  the  same  court  the 
said  A.  B.  recovered  against  the  said  C.  D.  as  well  the  said 

sum  of  dollars,  the  debt  in  that  plea  demanded,  as 

the  further  sum  of  dollars,  damages  for  the  detaming 

of  thc.t  debt,  and  the  costs  of  the  said  A.  B.  in  that  behalf, 
taxed  at  the  sum  of dollars  ;  and  the  same  debt,  dam- 
ages and  costs  still  remain  wholly  unpaid  to  him  the  said 
A.  B.     By  means  of  which  premises,  etc. 

A  failure  to  collect  debts  which  might  be  collected  is 
waste  b}^  an  administrator,  and  he  is  chargeable  with  the 
loss,  [t) 

An  averment  that  the  administrator  has  not  complied  with 
an  order  of  the  County  Court  directing  the  payment  of  a  claim 
against  the  estate,  is  a  sufficient  averment  that  the  money  or- 
dered to  be  paid  had  not,  in  fact,  been  paid  to  the  party  enti- 
tled to  the  same,  {ii) 

In  an  action  upon  an  administrator's  bond,  at  the  instance 
of  a  creditor,  a  right  of  recover}^  exists,  -prima  facie^  if  it 
appears  that  the  person  for  whose  use  the  suit  is  brought 
holds  a  claim  against  the  estate,  and  that  the  administrator 
has  been  guilty  of  a  devastavit  to  the  extent  of  such  claim. 
It  is  not  essential  to  such  right  of  recovery  that  the  creditor- 
should  prove  there  were  no  assets  to  which  he  could  resort 

{t)   17  Md.  1550. 

(?.<)  87  111.  76. 


DEBT.  357 

On  administrator's  bond — Observations — Devastavit,  e.c. 

for  the  satisfaction  of  his  claim.  Even  if  it  should  appear 
that  there  were  assets  sufficient  to  satisfy  the  creditor,  the 
right  of  recovery  on  the  bond  would  perhaps  not  thereby 
be  defeated.  (54  111.  263.)  This  case  was  decided  before 
the  passage  of  the  act  of  1872,  above  mentioned. 

Creditors,  heirs  and  distributees  only,  and  not  an  admin- 
istrator de  bonis  non,  can  charge  a  former  administratoi 
with  a  devastavit,  {v) 

In  Ralston  v.  Wood,  15  111.  159,  the  court  says  that  a 
suit  upon  an  administrator's  bond,  for  a  failure  by  the  ad- 
ministrator to  pay  over  money  adjudged  by  a  probate  court 
to  be  paid,  is  a  collateral  action,  founded  as  well  upon  that 
judgment  as  upon  the  bond ;  and  in  such  action  the  judg- 
ment can  not  be  inquired  into  by  those  affected  by  it — 
neither  by  the  administrator  nor  his  sureties — except  for 
fraud. 

For  a  breach  of  the  condition  of  an  executor's  or  admin- 
istrator's bond,  an  action  may,  in  Illinois,  be  maintained 
against  any  one  or  more  of  the  obligors  ;  (w)  and  the  bond 
may  be  described  as  the  bond  of  those  of  the  obligors  who 
are  sued,  without  noticing  the  others,  {x) 

The  statute  in  that  rejjard  is  as  follows:  "All  bonds 
which  may  at  any  time  be  given  by  any  executor  or  ad- 
ministrator, either  with  or  without  the  will  annexed,  or 
dc  bonis  non,  to  collect,  or  public  administrator,  may  be 
put  in  suit  and  prosecuted  agamst  all  or  any  one  or  more 
ot  the  obligors  named  therein,  in  the  name  of  the  people 
of  the  state  of  Illinois,  for  the  use  of  any  person  who  may 
have  been  injured  by  reason  of  the  neglect  or  improper 
conduct  of  any  such  executor  or  administrator,  and  such 
bonds  shall  not  become  void  on  the  first  recovery  thereon, 
but  may  be  sued  upon,  from  time  to  time,  until  the  Avhole 

(v)  14  111.  8,  33S;  25111.  4S9,  600;  5  Randolph,  51;  9  Leigh,  580;  7  Bibb, 
t47;  SBlackf.  167;  3  Rawle,  361;  Bac.  Abr.  Ex'r.  B,  2.  See  15  111.  2S4; 
48  111.  17. 

(w)  I  Scam.  S3;  27  111.  215. 

C*)  54  111-  263:  50  111.  132. 


358  DEBT, 

Declaration  on  an  attachment-bond. 


penalty  shall  be  recovered  :  Provided^  that  the  person  for 
whose  use  the  same  is  prosecuted  shall  be  liable  for  all 
costs  which  ma}^  accrue  in  the  prosecution  of  the  same ; 
and  certified  copies  of  all  such  bonds,  under  the  seal  of  the 
clerk  of  the  county  court,  shall  be  received  as  evidence  to 
authorize  such  recovery  in  any  court  of  law  or  equity  of 
competent  jurisdiction."  (jy) 

In  Illinois,  when  a  new  bond  is  given  by  an  executor  or 
administrator,  under  the  statute,  the  sureties  in  the  former 
bond  are  released  from  all  liability  for  past  as  well  as  sub- 
sequent acts,  {z)  If  the  executor  or  administrator  fails  to 
give  new  bond,  when  required,  and  his  letters  are  revoked, 
then  the  sureties  are  released  from  all  future  liability,  {a) 

The  adjudged  cases  in  Illinois,  relating  to  executors  and 
administrators,  are  very  numerous,  almost  every  volume  of 
the  reports  containing  one  or  more  cases  of  this  kind. 

No.  163.      On  an  attachnicnt-hond  {given  in  a  suit  in  the 
same  court). 

(  Title  of  court.,  etc.,  as  in  JVo.  147,  ante.)  A.  B.,  plaint- 
ift",  by  L.  M.,  his  attorney,  complains  of  C.  D.,  E.  F.  and 
G.  H.,  defendants,  of  a  plea  that  they  render  to  the  said 
A.  B.  the  sum  of dollars,  which  they  owe  to  and  un- 
justly detain  from  him  :  For  that  whereas  the  said  C.  D., 
on,   etc.,  in,  etc.,  pra3'ed  a  writ  of  attachment  out  of  the 

said  Court  of  the  said  count}'',  against  the  estate  of 

the  said  A.  B.  ;  and  on  that  occasion  the  said  C.  D.,  E.  F. 
and  G.  H.  then  and  there,  by  their  writing  obligator}', 
bearing  date  of  that  day,  did  jointly  and  severally  ac- 
knowledge themselves  to  be  held  and  firmly  bound  unto 

the  said  A.  B.  in  the  sum  of dollars,  to  be  paid  to  him 

the  said  A.  B.  ;  which  said  writing  obligatory  w'as  and  is 
subject  to  a  certain  condition  thereunder  written,  whereby, 
after  reciting  to  the  efi'ect  that  the  said  C.  D.  had  on  the 
day  aforesaid  pra3'ed  an  attachment  out  of  the  said  court, 
at  the  suit  of  hiinelf,  against  the  estate  of  the  said  i\.  B., 

{y)  Rev.  Stat.  (1874)  109;  Rev.  Stat.  (1877)  104;  24  111.  325.  See  27  111. 
215;   16  111.  173. 

(z)   Rev.  Stat.  (1874)  no;  Rev.  Stat.  (1877)  106;  27  111.  215. 
[a)  27  111.  215. 


DEBT.  '  359 

Declaration  on  an  attachment-bond. 


for  the  sum  of dollars,  which  attachment  was  then 

about  to  be  sued  out  of  the  said  court,  returnable  on  the 

day  of then  next,  to  the  term  of  the  said  court 

then  to  be  holden,  it  was  provided  that  if  the  said  C.  D. 
should  prosecute  his  said  suit  with  effect,  or  in  case  of  fail- 
ure therein  should  well  and  truly  pay  and  satisfy  the  said 
A.  B.  all  such  costs  in  the  said  suit,  and  such  damages  as 
should  be  awarded  against  the  said  C.  D.,  his  heirs,  exec- 
utors or  administrators,  in  any  suit  or  suits  which  might 
thereafter  be  brought  for  wrongfully  suing  out  the  said  at- 
tachment, then  the  said  writing  obri.(]^atory  was  to  be  void, 
otherwise  to  remain  in  full  force  and  effect ;  as  by  the  said 
writing  obligatory  and  the  said  condition  thereof,  remaining 
affiled  in  the  said  court,  will  appear:  And  thereupon,  on 
the  day  first  aforesaid,  there  issued  from  the  said  court  the 
writ  of  attachment  aforesaid,  returnable  as  in  the  said  con- 
dition mentioned,  by  which  said  writ  the  People  of  the  said 
state  of  Illinois  commanded  the  sheriff  of  the  said  county 
that  he  should  attach  so  much  of  the  estate,  real  or  personal, 
of  the  said  A.  B.,  to  be  found  in  the  said  county,  as  should 
be  of  value  sufficient  to  satisfy  the  said  debt  and  the  costs, 
according  to  the  complaint  in  that  behalf,' and  such  estate 
so  attached  in  his  the  said  sheriff's  hands  to  secure,  or  so 
to  provide  that  the  same  might  be  liable  to  further  proceed- 
ings thereupon,  according  to  law,  etc.  :  And  thereupon 
the  said  sherifT,  to -whom  the  said  writ  was  then  and  there 
delivered  for  execution,  by  virtue  of  the  said  writ  then  and 
there  attached  and  took  divers  goods  and  chattels  of  the 

said  A.  B.,  of  the  value  of dollars.     And  the   said 

A.  B.  in  fact  says,  that  the  said  C.  D.  did  not  prosecute  his 
said  suit  with  effect,  but  that  such  proceedings  were  there- 
upon had  in  that  suit  that  afterwards,  in  the  said term 

of  the  said  court,  to  wit,  on,  etc.,  it  was  considered  by 
the  said  court  that  the  said  writ  should  be  quashed,  and 
that  the  said  A.  B.  should  recover  his  costs  in  that  behalf 
against  the  said  C.  D.  ;  which   said  costs  were  and   are 

taxed  in  the  said  court  at  the  sum  of  dollars,  and  still 

remain  unpaid  to  him  the  said  A.  B.  And  the  said  A.  B. 
further  in  fact  says,  that  by  reason  of  the  wrongful  suing 
out  of  the  said  writ  he  was  there  obliged  to  and  did  expend 

di\ers  sums  of  money,  amounting  to dollars,  in  and 

about  his  defense  of  that  suit,  and  has  thereby  sustained 
damage  to  that  amount ;  yet  the  said  C.  D.  (although  he 


36o  DEBT. 


On  an  attachment-bond — Observations,  etc. 


was  on  the  day  last  aforesaid  there  requested  by  the  said  A. 
B.  so  to  do)  has  not  pa  d  to  him  the  said  A.  B.  the  last- 
mentioned  sum  of  money,  or  any  part  of  the  same.  By 
means  of  which  premises  an  action  has  accrued  to  the  said 
A.  B.  to  demand  of  the  said  C.  D.,  E.  F.  and  G.  H.  the 

said  sum  of dollars  above  demanded  :     Yet  though 

requested,  they  have  not  paid  to  the  said  A.  B.  that  sum  of 
money,  or  any  part  thereof,  but  refuse  so  to  do  ;  to  the 

damage  of  the  said  A.  B.  of dollars,  and  therefore  he 

brings  his  suit,  etc. 


From  the  wording  of  the  condition  of  the  bond  prescribed 
by  the  5th  section  of  the  Illinois  attachment-act,  and  from 
the  4th  section  of  the  same  act,  {b)  it  would  seem  that  the 
obligors  would  only  be  liable  for  such  damages  as  might  be 
awarded  against  the  principal  in  any  suit  which  might  af- 
terwards be  brought  against  him  for  wrongfully  suing  out 
the  writ — that  is,  if  the  defendant  in  the  attachment-suit 
should,  in  an  action  brought  by  him,  recover  damages 
against  the  principal  for  wrongfully  suing  out  the  attach- 
ment, and  the  latter  should  not  pay  such  damages,  then  the 
obligors  would  be  liable  on  their  bond.  But  in  the  case  of 
Churchill  V.  Abraham ^  22  111.  455,  the  court  says,  "it  has 
never  been  held  that  the  obligee  could  not  recover  the 
amount  of  the  damages  actually  sustained  by  the  wrongful 
suins"  out  of  the  attachment,  until  he  has  brou£{ht  an  action 
for  maliciously  suing  out  the  writ,  and  recovered  a  judg- 
ment for  the  damages  sustained.  Our  statute  intends  to 
afford  a  remedy  to  the  defendant  in  attachment,  if  the  at- 
tachment is  not  sustained,  although  it  may  have  been  sued 
out  in  good  faith,  and  upon  probable  cause.  If  the  party 
could  only  sue  upon  the  bond  after  he  had  recovered  a 
judgment  for  a  malicious  attachment,  he  might  sustain  the 
most  serious  loss  by  the  wrongful  act  of  the  plaintiff  even 
when  it  was  not  malicious.  The  plaintiff  in  attachment  can 
not  excuse  himself  because  he  acted  in  good  faith.     If  he 

\d)    Rev.  Stat.  (1874)  ij3;   Rev.  Stat.  (1S77)  150. 


DEBT.  361 

On  an  attachment-bond — Observations,  etc. 

occasions  damages  b}*  an  attachment  which  he  can  not  siis- 
tain,  he  and  his  sureties  should  and  must  be  responsible  for 
those  damages.  Although  the  \\'ording  of  the  bond,  as 
prescribed  by  the  statute,  does  not  express  the  liability  in 
language  as  clear  as  might  have  been  selected,  its  meaning 
has  been  long  and  well  settled  in  this  state,  and  we  should 
not,  w^ere  the  language  even  more  doubtful,  feel  at  liberty 
to  disturb  it."  {c) 

Although  the  goods  may  have  been  sold  under  an  execu- 
tion after  they  were  seized  under  the  attachment,  that  does 
not  alter  the  measure  of  the  liability  arising  by  reason  of 
the  wrongful  suing  out  of  the  attachment.  (^) 

A  proceeding  "in  attachment  was  held  invalid  by  reason 
of  the  insufficiency  of  the  bond,  which  described  no  court 
from  wdiich  the  writ  issued,  nor  any  court  or  term  to  which 
it  was  to  be  returned  ;  and  the  court  said  the  bond  was  so 
wholly  uncertain  that  it  might  well  be  doubted  whether  an 
action  could  ever  be  maintained  on  it,  in  case  of  a  breach 
of  its  condition,  (e)  In  another  case,  w^here  the  onl}'  men- 
tion of  the  court,  in  the  bond,  was  in  the  condition,  wherein 
the  writ  was  described  as  "  returnable  on  the  2d  day  of 
November  next,  to  the  term  of  the  court  then  to  be  holden," 
the  bond  was  held  sufficient,  as  it  complied  wath  the  form 
given  by  the  statute  then  in  force.  (/) 

Where  the  condition  of  an  attachment-bond  recited  that 
A.  and  B.  had  prayed  an  attachment  at  the  suit  of  C,  to 
their  use,  and  provided  that  if  A.  and  B.  should  prosecute 
their  suit,  etc. — following  the  form  given  in  the  5th  section 
of  the  Illinois  attachment-act — the  bond  was  held  sufficient, 
although  the  4th  section  of  the  act  requires  the  bond  to  be 
"  conditioned  for  satisfying  all  costs  which  may  be  aw^arded 


(c)  See  28  III.  240. 
(rf)  22  111.  455. 
(e>  2  Scam.  15. 
\,y  )  3  Scam.  576. 


362  DEBT. 

Declaration  on  an  injunction-bond. 

to  such  defendant,  or  to  any  others  interested  in  said  pro- 
ceedings.^'' [g) 

No.  164.      On  an  injunction-bond  {given  in  a  suit  in  the 
same  court). 

{Commence  as  in  the  last  precedent.^  For  that  whereas 
on,  etc.,  the  said  C.  D.  exhibited  in  the  said  Circuit  Court 
of  the  count}'-  aforesaid,  on  the  chancery  side  thereof,  his 
bill  of  complaint  against  the  said  A.  B.,  and  theieby 
prayed,  amongst  other  things,  that  the  said  A.  B.  might  be 
enjoined  from  doing  certain  acts  in  the  said  bill  mentioned  ; 
and  upon  examination  thereof,  the  Judge  of  ih.Q  said  court 
then  and  there  ordered  that  a  writ  of  injunction  should 
issue,  according  to  the  prayer  of  the  said  bill,  upon  the 
said  C.  D.'s  giving  bond,  conditioned  according  to  law,  {or 
"as  required  by  the  said  order,")  with  the  said  E.  F.  and 
G.  H.  as  sureties  :  And  thereupon,  in  pursuance  of  the 
said  order,  the  said  C.  D.  gave  bond,  with  the  said  E.  F. 
and  G.  H.  as  sureties  therein  as  aforesaid  ;  and  on  that 
occasion  they  the  said  C.  D.,  E.  F,  and  G.  H.,  by  their 
writing  obligatory,  bearing  date  of  that  day,  jointly  and 
severally  acknowledged  themselves  to  be  held  and  firmly 

bound  unto  the  said  A.  B.  in  the  sum  of dollars  above 

demanded,  to  be  paid  to  him  the  said  A.  B.,  upon  the  con- 
dition, nevertheless,  that  if  the  said  C.  D.  should  well  and 
truly  pay  to  the  said  A.  B.  all  such  costs  and  damages  as 
should  be  awarded  against  him  the  said  C.  D.  in  case  the 
said  injunction  should  be  dissolved,  then  the  said  writing 
obligatory  was  to  be  void,  and  otherwise  to  remain  in  full 
force  ;  as  by  the  said  writing  obligatory,  remaining  affiled 
in  the  said  court,  will  more  fully  appear;  (*)  And  there- 
upon there  issued  then  and  there,  from  the  said  court,  a 
writ  of  injunction  in  that  behalf,  whereby  the  People  of  the 
said  state  of  Illinois  commanded  and  strictly  enjoined  the 
said  A,  B.  that  he  should  absolutel}'  desist  and  refrain  from 
doing  the  acts  therein  and  in  the  said  bill  mentioned,  until 
the  further  order  of  the  said  court  in  the  premises  ;  which 
said  writ  was  then  and  there  directed  and  delivered  to  the 
sheritr  of  the  county  aforesaid  to  be  executed,  and  to  be  by 
him  returned  into  the   said   court  at  the  then   next  term 


I 


{g)  5  Gilm.  303;  Rev.  Stat.  (1874)  I53;  Rev.  Stat.  (1S77)  15. 


DEBT.  363 

Declaration  on  an  injunction-bond. 

thereof,  in  due  form  of  law :  And  thereupon  the  said 
t=heriff,  on  the  day  first  aforesaid,  there  duly  served  the 
said  writ  on  the  said  A.  B.,  by  delivering  to  him  a  true 
copy  of  the  same.  And  the  said  A.  B.  in  fact  sa3S,  that 
such  proceedings  were  thereupon  had  in  that  cause  that 

afterwards,  in  the term  of  the  said  court,  in  the  year 

18 — ,  to  wit,  on,  etc.,  in  that  year,  it  was  adjudged  and 
decreed  b}'  the  said  court  that  the  said  injunction  should  be 
dissolved,  and  that  the  said  C.  D.  should  pay  to  the  said 
A.  B.  his  costs  in  that  behalf,  which  said  costs  were  and 

are  taxed  in  the  said  court  at  the  sum  of dollars,  and 

should  pay  to  him  the  said  A.  B.  the  sum  of dollars, 

whir.h  by  the  said  court  was  then  and  there  adjudged  to 
him  for  his  damages  by  him  in  that  behalf  sustained  :  Nev- 
ertheless the  said  C.  D.  has  not  paid  to  the  said  A.  B.  the 
costs  and  damages  aforesaid,  or  any  part  thereof,  but  the 
same  remain  wholly  unpaid.  Whereby  an  action  has  ac- 
crued to  the  said  A.  B.  to  demand  of  the  said  C.  D.,  E.  F. 

and  G.  H.  the  said  sum  of dollars  above  demanded  : 

Yet  they  have  not  paid  to  the  said  A.  B.  that  sum  of  money, 
or  any  part  thereof,  but  refuse  so  to  do ;  tu  the  damage  of 

the  said  A.  B.  of  dollars,  and  therefore  he  brings  his 

suit,  etc. 

Section  12  of  the  Injunction  Act,  provides,  that  "in  all 
cases  where  an  injunction  is  dissolved  by  any  court  of  chan- 
cery in  this  state,  the  court,  after  dissolving  such  injunction, 
and  before  finally  disposing  of  the  suit,  upon  the  party  claim- 
ing damages,  by  reason  of  such  injunction,  suggesting  in 
writing  the  nature  and  amount  thereof,  shall  hear  evidence, 
and  assess  such  damages  as  the  nature  of  the  case  may  re- 
quire, and  to  equity  appertain,  to  the  party  damnified  by 
such  injunction,  and  may  award  execution  to  collect  the 
same,  provided,  a  failure  so  to  assess  damages  shall  not 
operate  as  a  bar  to  an  action  upon  the  injunction   bond."   (//) 

Damages  may  be  assessed  either  on  the  dissolution  of  the 
injunction,  or  in  a  suit  on  the  bond.  (/)  And  a  failure  to  assess 

(A)  I  Starr  &  Curlis'  An.  Stat.  1285;  Rev.  Stat.  (1S77)  556;  2S  Hi.  240;  31 
111.  416;  43  111.  470;  45  111.  100,  103;  48  111,  301;  49  111.  506;  SO  111.  21;  51 
111.  328;  54   111.  192,  210;  80  III.  564;  78  111.  loi;  77  111.  573;  75  111.  621. 

(i)  4  Bradw.  94;   i  Bradvv.  315. 


364  DEBT. 

Declaration  on  an  injunction  bond. 

damages  on  the  dissolution,  is  no  bar  to  an  action  on  the 
injunction  bond  therefor.   («) 

A  recovery  in  an  action  on  bond  is  an  award  of  damages 
within  the  usual  conditions  of  such  bonds.  And  it  is  not 
necessary  that  a  separate  recovery  should  be  had  against  the 
complainant  before  the  liability  attaches  against  the  secu- 
rities. When  a  judgment  is  recovered  against  him  and  the 
other  obligors,  the  condition  is  answered,  as  the  damages  are 
then  awarded  against  him.   {b) 

The  act  of  1861  was  the  same  as  the  above  section  with 
the  exception  of  the  proviso.  In  the  revision  of  1874,  that 
act  was  amended  by  adding,  "  Provided,  a  failure  to  assess 
damages  shall  not  operate  as  a  bar  to  an  action  upon  the  in- 
junction bond."  Under  the  act  of  1861,  it  was  held  that  un- 
less the  obligees  had  their  damages  assessed  upon  the 
dissolution  they  could  not  have  them  assessed  in  a  suit  on 
the  bond,  {c) 

If  the  damages  were  not  assessed  on  dissolution,  the  dec- 
laration may  proceed,  from  the  asterisk  in  the  above  form,  in 
this  manner: 

And  thereupon  there  issued  then  and  there,  from  the  said 
court,  a  writ  of  injunction  in  that  behalf,  whereby  the  Peo- 
ple of  the  said  state  of  Illinois  commanded  and  strictly 
enjoined  the  said  A.  B.  that  he  should  absolutely  desist  and 
refrain  from  removing,  selling,  or  in  any  manner  disposing 
of  or  interfering  with  a  certain  stock  of  dry-goods  and  gro- 
ceries then  in  a  certain  store-house  then  occupied  by  the 

said  A.  B.,  in  the  town  of ,  in  the  county  aforesaid, 

until  the  further  order  of  the  said  court  in  the  premises  ; 
which  said  writ  was  then  and  there  directed  and  delivered 
to  the  sheriff'  of  the  count}^  aforesaid  to  be  executed,  and 
to  be  by  him  returned  into  the  said  court,  at  the  then  next 
term  thereof,  in  due  form  of  law :  And  thereupon  the  said 
sheriff^  on  the  day  first  aforesaid,  there  duly  served  the 
said  writ  on  the  said  A.  B.,  by  delivering  to  him  a  true 
copy  of  the  same.  And  the  said  A.  B.  in  fact  says,  that 
such  proceedings  were  thereupon  had  in  that  cause  that 
afterwards,  in  the term  of  the  said  court,  in  the  year 

[a)  8  Bradw.  384. 

{!>)  28  111.  28;  31  111.  416;  45  111.    103. 

[c)  56  111.  176;   58  111.  152;  81  111.  314. 


1 


DEBT. 365 

On  an  injunction-bond — Observations,  etc. 

18 — ,  to  wit,  on,  etc.,  in  that  year,  it  was  adjudged  and 
decreed  by  the  said  court  that  the  said  injunction  should  be 
dissoh'ed,  and  tliat  the  said  C.  D.  should  pay  to  the  said 
A.  B.  his  costs  in  that  behalf;  which  said  costs  were  and 

are  taxed  in  the  said  court  at  the  sum  of dollars,  and 

sdll  remain  wholl}^  unpaid  to  the  said  A.  B.  And  the  said 
A.  B.  further  in  tact  says,  that  by  reason  of  the  said  in- 
junction he  was,  during  all  the  time  the  same  remained  in 
force  as  aforesaid,  there  prevented  from  merchandizing 
and  making  profit  of  the  said  stock  of  dry-goods  and  gro- 
ceries, (whereof  he  was  then  the  owner,  and  which  was,  at 

the  time  of  the  issuing  of  the  said  writ,  of  the  value  of 

dollars,)  and  from  carrying  on  his  business  of  a  merchant, 
and  thereby  he  the  said  A.  B.  there  lost  and  was  deprived 
of  great  gains  and  profits  which  he  otherwise  would  have 

made,  amounting  to  the   sum   of dollars  ;  and   also, 

during  the  time  the  said  injunction  remained  in  force  as 
aforesaid,  the  said  A.  B.  was  there  compelled  to  and  did 
pay  out  and  expend  divers  sums  of  money,  amounting  to 

the  sum  of  dollars,  for  rent  of  the  store-house  above 

mentioned,  and  for  other  expenses  of  his  said  business, 
without  deriving  any  benefit  therefrom  ;  and  also,  by  rea- 
son of  the  said  injunction,  the  said  A.  B.  was  there  com- 
pelled to  and  did  pay  out  and  expend  divers  sums  of  money, 

amounting  to   the   sum   of  dollars,   for  the  fees  and 

charges  of  solicitors  and  counsel,  and  for  other  charges 
and  expenses,  in  and  about  his  defense  in  that  behalf;  and 
also,  (atiy  other  special  damage  may  be  here  alleged  in  like 
manner):  by  means  of  which  premises  the  said  A.  B.  has 

sustained  damages  to  the  amount  of dollars,  and  the 

said  damages  remain  wholly  unpaid  to  him  tha  said  A.  B. 
Whereby  an  action  has  accrued,  etc.  {concluding  as  in  tlie 
above  -precedent. ) 

The  act  of  1861  does  not  repeal  the  act  of  iS|5,  but  pro- 
vides for  cases  not  embraced  within  the  last-  named  act. 
Upon  the  dissolution  of  an  injunction  "to  stop  the  collec- 
tion of  a  judgment  at  law,"  the  assessment  of  damages  is 
governed  by  the  act  of  1845,  and  no  suggestion  of  damages 
is  necessary.  The  extent  of  the  liability,  in  such  a  case, 
appears  on  the  face  of  the  bill.  (/) 

(y)  49  111.  506;  50  111.  21;  36  111.  268;   Rev.  Stat.  (1877)  556. 


366  DEBT. 

On  an  injunction-bond — Observations,  etc. 

But  an  injunction  to  restrain  the  sale  of  certain  property, 
on  grounds  entirely  independent  of  the  validity  of  the  judg- 
ment, is  not  an  injunction  against  the  judgment,  (k)  And 
upon  the  dissolution  of  an  injunction  to  restrain  an  incor- 
porated town  from  instituting  and  prosecuting  actions  at  law 
against  the  complainant,  for  alleged  violations  of  an  ordi- 
nance, there  must  be  a  suggestion  of  damages,  in  order  to 
authorize  a  decree  therefor.  (/) 

A  statutory  bond,  the  form  of  which  is  prescribed,  will 
be  construed  to  have  the  effect  given  by  the  statute,  which 
enters  into,  and  forms  a  part  of,  the  instrument,  (ifi) 

An  injunction-bond  is  designed  to  indemnify  against  im- 
mediate and  actual  loss,  but  not  remote  injuries,  such  as  a 
damage  to  credit,  resulting  from  the  injunction.  The  con- 
dition of  such  a  bond  includes  the  right  of  recovery  of 
costs,  if  such  are  in  effect  aAvarded  against  the  complain- 
ant on  a  dissolution  of  the  injunction,  [n) 

It  is  immaterial  what  was  the  motive,  or  whether  or  not 
there  was  probable  cause,  for  suing  out  an  injunction  ;  nor 
is  it  any  defense,  to  an  action  on  the  bond,  that  the  writ  was 
unauthorized,  because  broader  in  its  commands  than  was 
warranted  by  the  order,  it  being  the  duty  of  the  party  suing 
out  the  writ  to  see  that  it  is  correct,  (o) 

It  is  sufficient  if  the  Avrit  is  shown  to  have  been  the  same 
in  substance  and  effect  as  alleged  in  the  declaration,  (p) 

The  dissolution  of  an  existing  injunction,  for  want  of  a 
proper  bond,  followed  by  an  immediate  order  for  a  new  in- 
junction upon  the  filing  of  a  new  bond,  w^ould  not — such 
new  bond  being  filed — be  such  a  dissolution  as  is  contem- 
plated b}'-  the  statute  in  relation  to  damages,  (g) 

(>{■)  54  111.  192. 
(/)  54  111.  210. 

(;«)  28  III.  240. 
(«)  28  111.  240. 
(o)  45  111.  103. 
(/)45  111.  10,^ 
(?)  45  111-  274. 


d 


DEBT.  367 

On  an  injunction-bond—  Observations,  etc. 


Where  the  original  injunction-bond  in  a  cause  was  insuf- 
ficient, and  a  motion  was  made  to  dissolve  the  injunction  on 
that  ground,  and  thereupon  the  complainant  moved  for 
leave  to  file  an  amended  bond,  and  such  a  bond  was  filed, — 
it  was  held,  that  from  the  order  of  the  court  refusing  the 
motion  to  dissolve  the  injunction,  the"  amended  bond  would 
be  presumed  to  be  properly  on  file,  even  in  the  absence  of 
an  order  expressly  granting  leave  for  it  to  be  filed ;  and  it 
could  not  be  alleged,  in  an  action  on  sucli  bond,  that  it  was 
filed  without  leave  of  the  court,  (r) 

In  a  proceeding  to  enjoin  the  collection  of  a  promissory 
note,  the  statute  (of  Illinois)  does  not  prescribe  the  condi- 
tions to  be  inserted  in  the  injunction-bond ;  and  in  such 
cases  the  judge  or  master  may  require  the  complainant  to 
give  security  for  the  payment  of  the  note  if  he  fails  to  main- 
tain his  suit.  And  where  a  bond  is  so  conditioned  for  the 
pa3'ment  of  the  debt,  the  liability  of  the  surety  therefor  be- 
comes fixed  when  the  injunction  is  dissolved,  and  a  recov- 
ery may  be  had  against  him  in  an  action  on  the  bond.  (5) 

On  the  occasion  of  the  issuing  of  an  injunction  to  restrain 
the  collection  of  a  school-tax,  the  bond  was  conditioned  for 
the  payment  of  "  all  moneys  and  costs  due  or  to  become  diic^ 
and  such  damages  as  shall  be  awarded,"  etc.  In  an  action 
brought  on  this  bond,  the  court,  after  remarking  that  this 
was  not  a  bond  given  in  any  such  case  as  is  specified  in  the 
statute,  held  that  the  obligors  were  liable  for  the  costs  and 
expenses,  including  counsel  fees,  incurred  by  the  defend- 
ants in  the  injunction,  in  litigating  that  matter,  but  not  for 
the  amount  of  the  tax  in  controversy,  {t) 

In  the  case  of  Sttirges  v.  Hart,  45  111.  103,  above 
mentioned,  it  is  said  that  if  the  averments  of  damages, 
in  the  declaration,  are  not  sufliciently  specific,  the  objec- 
tion must  be  taken  by  demurrer.     Also,  that  upon  proof  ot 


{r)  51  111.  393. 

(s)  49  111-  509.     See  86  Til.  236. 

(0  25  111.  372.     See  77  111.  533. 


368  DEBT. 

On  an  injnnctiou-bond — Observations,  etc. 

a  loss  of  a  sale  of  lands,  by  reason  of  an  injunction,  tlie 
extent  of  the  damages  may  be  shown  b}^  evidence  of  the 
deterioration  in  the  market  price  or  value  of  the  lands  ; 
but  the  loss  of  sales  must  be  shown  by  proving  applications 
made  by  persons,  in  good  faith,  to  purchase,  and  that  the 
failure  to  sell  was  fairl}^  attributable  to  the  injunction.  Slight, 
indefinite  evidence  on  that  subject  is  not  sufficient. 

In  cases  of  the  assessment  of  damages,  under  the  act  of 
1861,  requiring  a  suggestion  in  writing,  the  court  is  required 
to  hear  evidence  in  respect  thereof;  and  such  evidence 
must  be  preserved  in  the  record,  in  order  to  support  a  decree 
awarding  damages.  (?/)  And  there  must  be  a  suggestion 
in  writing,  in  such  case  ;  and  it  is  of  no  avail  to  file  the 
sucrgestion  after  the  assessment  is  made.  The  suggestion 
is  designed  to  take  the  place  of  a  declaration,  and  should 
be  so  framed  as  to  inform  the  opposite  party  of  the  nature 
and  amount  of  the  damages  claimed,  {z') 

Where  a  temporar}^  restraining  order  is  granted,  until  a 
formal  application  for  an  injunction  can  be  made,  and  on 
the  making  of  such  application  the  injunction  is  denied, 
there  can  be  no  assessment  of  damages,  the  restraining 
order  not  requiring  the  action  of  a  court  to  dissolve  it.  (w) 

Solicitors'  fees,  and  other  expenses  of  the  litigation,  may 
be  allowed  as  damages,  on  the  dissolution  of  an  injunc- 
tion, (x) 

The  sum  of  $176  was  held  to  be  an  unreasonable  allow- 
ance for  solicitors'  fees,  in  a  case  only  involving  two  thirds 
of  twenty  acres  of  rye,  and  attended  with  no  special  diffi- 
culty ;  and  the  court  said  that  the  fact  that  three  different 
coimsel  were  employed  did  not  alTect  the  question,  as  a  de- 
fendant in  an  injunction  can  not  be  permitted  to  lay  the 
foundation  for  large  damages  by  employing  an  unnecessary 

(u)   54  111.  210;  78  111.  loi ;  75  111.  457.  1S5  ;  12  Brarlw.  655. 
(v)   40  111.  179  ;  54  111.  210;  80  111.  564. 
{w)   46  111.  447;  85  111.  349  ;  99  H'-  600;  19  Bradw.  38. 
(x)   43  111.  470;  25  111.  372;  71  111.  25;  78  111.  loi,  281. 


DEBT.  369 

Declaration  on  a  license-bond. 

number  of  counsel.  In  the  same  case,  it  was  held  that  the 
allowance  to  the  defendant  of  $50,  for  his  own  expenses, 
was  improper,  (r) 

■  On  tlie  dissolution  of  an  injunction  against  the  trustees 
of  a  state  institution,  the  expenses  of  the  trustees,  and  their 
loss  of  time,  while  in  attendance  at  court  on  the  hearing  of 
the  motion  to  dissolve,  can  not  be  considered  as  an  element 
of  damages,  their  attendance  for  that  purpose  not  appear- 
ing to  be  necessary  ;  and  even  if  necessary,  being  employed 
in  the  discharge  of  their  duty,  and  charging  the  state  for 
their  time  and  expenses,  neither  the  trustees  nor  the  state 
could  sustain  damages  for  their  time  so  expended,  (z) 

In  a  case  where  a  sale  under  a  judgment  had  been  en- 
joined, and  afterwards  the  judgment  was  reversed,  the 
court  said  that  such  reversal  might  have  an  important  bear- 
ing on  the  question  of  damages,  in  an  action  on  the  injunc- 
tion-bond, or  on  a  motion  to  assess  damages  upon  a  disso- 
lution of  the  injunction,  (a) 

A'o.  165.      On  a  liccnsc-bond — Action  fo7'  use  of  ivife  of 
j)cj'son  to  zv/ioin  intoxicating  liquors  vjcj'C  sold. 

{Title  of  court,  etc.,  as  in  JVo.  147,  ante.)  The  People 
of  the  state  of  Illinois,  plaintifl',  which  sues  in  this  behalf 
for  the  use  of  A.  B.,  complains  of  C.  D.,  E.  F.  andG.  H., 
defendants,  of  a  plea  that  they  render  to  the  plaintiff,  for 
the  use  aforesaid,  the  sum  of  three  thousand  dollars,  which 
they  owe  to  and  unjustly  detain  from  the  plaintiff:  For  that 
whereas  the  said  C.  D.,  on,  etc.,  in,  etc.,  applied  for  and 
obtained  from  the  mayor  and  common  council  of  the  city 
of ,  in  the  county  aforesaid,  a  license  to  keep  a  gro- 
cery, and  sell  or  give  away  intoxicating  liquors,  at  number 

, street,  in  the  said  city,  Irom  the  day  aforesaid 

until  the day  of,  etc.  ;  and  on  that  occasion  the  de- 

lendants,  on  the  day  first  aforesaid,  in  the  county  aforesaid, 

0')  5'  in.  32S. 
(=)  54  111.  334. 

{a)  54  111.  192.    See  Puterbaugh's  Ch.  TI.  and  P.  (3d  Ed.)  title  "  Injunctions." 
24 


370  DEBT. 

Declaration  on  a  license-bond. 


by  their  n'xting  obligatory,  bearing  date  of  that  day,  and 
now  to  t]\e  court  here  shown,  did  jointly  and  severally  ac- 
knowledge themselves  to  be  held  and  firmly  bound  unto 
the  plaintiff  in  the  sum  of  three  thousand  dollars  above 
demanded,  to  be  paid  to  the  plaintiff,  upon  the  condition, 
nevertheless,  Ihat  if  the  defendants  should  pay  all  damages 
to  any  perscr*.  cr  persons  which  might  be  inflicted  upon 
them,  either  In  person  or  property,  or  means  of  support,  by 
reason  of  th',-  raid  C.  D.'s  selling  or  giving  away  intoxi- 
cating liquor j,  ihen  the  said  writing  obligatory  was  to  be 
void,  and  otherwise  to  remain  in  full  force.  And  tlic 
plaintift'  in  fact  says,  that  the  said  C.  D.,  after  the  making 
of  the  said  v/riting  obligatory,  to  wit,  on  the  day  first  afore- 
said, and  on  divers  other  days  between  that  day  and  the 

said  day  of,  etc.,   {or  "the  commencement  of  this 

suit,"  if  the  license  has  not  expired,)  at  the  above-mentioned 
place  in  the  said  city,  did  sell  and  give  away,  to  one  L.  M., 
intoxicating  liquors  to  be  drank  in,  upon  and  about  the 
building  and  premises  where  the  same  were  so  sold  and 
given  away  as  aforesaid,  and  in  divers  adjoining  rooms, 
buildings  and  premises,  and  other  places  of  public  resort 
connected  with  the  said  building :  And  by  reason  of  such 
selling  and  giving  away  of  intoxicating  liquors  to  the  said 
L.  M.  by  the  said  C.  D.,  as  aforesaid,  he  the  said  L.  M. 
during  that  time  became  an  habitual  drunkard,  and  wasted 
and  squandered  his  moneys  and  property,  and  became 
greatly  impoverished,  reduced,  degraded  and  ruined,  as 
well  in  his  mind  and  body  as  in  his  estate,  and  neglected 

and  ceased  to  pursue  his  business  and  calling  of  a , 

which  he  had  theretofore  used,  or  in  any  manner  to  earn  or 
provide  a  livelihood  for  the  said  A.  B.,  who  was  during  all 
that  time,  and  still  is,  the  wife  of  the  said  L.  M.,  to  wit,  in 
the  county  aforesaid  ;  and  thereby  the  said  A.  B.,  so  being 
the  wile  of  the  said  L.  M.  as  aforesaid,  has  there  lost  and 
been  deprived  of  her  means  of  support :  And  also  by  rea- 
son of  such  selling  and  giving  away  of  intoxicating  liquors 
to  the  said  L.  M.  by  the  said  C.  D.,  as  aforesaid,  he  the 
said  L.  M.,  on  the  day  first  aforesaid,  and  on  the  other 
days  above  mentioned,  there  became  intoxicated,  and  being 
so  intoxicated,  and  in  consequence  thereof,  there  assaulted, 
beat,  wounded  and  ill-treated  the  said  A.  B.,  and  other 
wrongs  to  her  then  and  there  did  :  By  means  of  which 
premises  the  said  A.   B.   has  sustained  damages  to  the 


I 


DEBT.  371 

Narr.  in  suit  on  statute,  against  liquor-seller,  etc. 

amount  of  dollars ;  yet  the  defendants  have  not  paid 

the  same,  or  any  part  thereof,  to  her  the  said  A.  B. 
Whereby  an  action  has  accrued  to  the  plaintiff  to  demand 
of  the  defendants,  for  the  use  aforesaid,  the  said  sum  of 
three  thousand  dollars  above  demanded  :  Yet  the  defend- 
ants have  not  paid  to  the  plaintiff  that  sum  of  money,  or 
any  part  thereof,  but  refuse  so  to  do  ;  to  the  damage  of  the 
plaintiff,  for  the  use  aforesaid,  of  dollars,  and  there- 
fore the  plaintiff,  for  the  use  aforesaid,  brings  suit,  etc. 

See  the  "act  to  provide  against  the  evils  resulting  from 
the  sale  of  intoxicating  liquors  in  the  state  of  Illinois."  An 
action  may  be  brought  on  the  bond  "  for  the  use  of  any 
person  or  persons,  or  their  legal  representatives,  who  may 
be  injured  by  the  selling  of  intoxicating  liquors  by  the  per- 
son" obtaining  the  license,  {b) 

No.  166.  On  the  statute.,  (<:)  against  seller  of  intoxicating 
liquors.,  by  one  iv/io  has  taken  charge  of  person  intoxi- 
cated. 

[Title  of  court,  etc.,  as  in  No.  147,  ante.)  A.  B., 
plaintiff,  by  E.  F.,  his  attorney,  complains  of  C.  D.,  de- 
fendant, of  a  plea  that  he  render  to  the  plaintiff  the  sum 

of dollars,  which  he  owes  to  and  unjustly  detained 

from  him:  For  that  whereas  the  defendant,  on,  etc.,  in, 
etc.,  by  the  sale  of  intoxicating  liquors  did  cause  the  intox- 
ication of  one  G.  H.  ;  and  thereupon  the  plaintiff  there 
took  charge  of  and  provided  for  the  said  G.  H.,  he  being 
so  intoxicated  as  aforesaid,  and  kept  him  the  said  G.  H., 

in  consequence  of  such  intoxication,  for  the  space  of 

days  from  and  including  the  day  aforesaid :  By  means 
whereof,  and  by  force  of  the  statute  in  such  case  made  and 
provided,  an  action  has  accrued  to  the  plaintiff  to  demand 
of  the  defendant  a  reasonable  compensation  for  so  taking 
charge  of  and  providing  for  the  said  G.  H.  as  aforesaid, 
which  said  reasonable  compensation  amounts  to  the  sum 

of  dollars,  parcel  of  the  said  sum  of  money  above 

demanded,  and  also  the  sum  of  two  dollars  for  each  day 
the  said  G.  H.  was  so  kept  by  the  plaintiff  as  aforesaid, 

[b)  I  Starr  &  Curtis'  An  Stat.  969;  84  111.  511  ;  93  111.  180;  13  Bradw.  206; 
loilll.  126;  109  111.  499;  15  Bradw.  164;  16  Bradw,  641,659;  Rev.  Stat. 
(1877)  433. 

(c)  I  Starr  &  Curtis'  An.  Stat.  971  ;  Rev.  Stat.  (1S77)  433. 


372  DEBT. 

Declaration  in  debt  on  statute,  for  cutting  trees,  etc. 

amounting  to  the  further  sum  of doHars,  residue  of 

the  said  sum  of  money  above  demanded.     Yet  the  defend- 
ant, though  requested,  has  not  paid  to  the  pLiintiffthe  said 

sum  of dollars  above  demanded,  or  any  part  thereof, 

but  refuses  so  to  do  ;  to  the  damage  of  the  plaintiff  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

The  8th  section  of  the  statute  above  referred  to  provides, 
that  *' every  person  who  shall,  by  the  sale  of  intoxicating 
liquors,  with  or  without  a  license,  cause  the  intoxication  of 
any  other  person,  shall  be  liable  for  and  compelled  to  pay 
a  reasonable  compensation  to  any  person  who  may  take 
charge  of  and  provide  for  such  intoxicated  person,  and  two 
dollars  per  day  in  addition  thereto  for  every  day  such  in- 
.oxicated  person  shall  be  kept  in  consequence  of  such  intox- 
.oation,  which  sums  may  be  recovered  in  an  action  of  debt 
jefore  any  court  having  competent  jurisdiction."  (c) 

jVo.  167.      On  the  statute,  [d^  for  cutting  trees,  etc. 

[Title  of  court,  etc.,  as  in  No.  147,  ante.)  A.  B., 
olaintiff,  by  E.  F.,  his  attorney,  complains  of  C.  D.,  de- 
fendant, of  a  plea  of  debt :  For  that  whereas  the  defend- 
ant, on  the day  of ,  in  the  year  18 — ,  in  the  county 

aforesaid,  ten  black-walnut  trees,  ten  black-walnut  sap- 
lings, ten  black-oak  trees,  ten  black-oak  saplings,  ten  elm 
trees,  ten  elm  saplings,  ten  cottonwood  trees  and  ten  Cot- 
tonwood saplings,  then  standing  and  growing  upon  certain 
land,  there  situate,  then  belonging  to  the  plaintiff,  did  cut, 
fell,  box,  bore,  destroy  and  carry  away,  without  having 
finst  obtained  permission  so  to  do  from  the  plaintiff,  then  the 
owner  of  the  said  land  as  atbresaid ;  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,:  Whereby, 
and  by  force  of  the  said  statute,  an  action  has  accrued  to 
the  plaintiff  to  demand  of  the  defendant  the  sum  of  eight 
dollars  for  each  of  the  said  black-walnut  trees,  black- 
walnut  saplings,  black-oak  trees  and  black-oak  saplings, 
and  the  sum  of  three  dollars  for  each  of  the  said  elm  trees, 
elm  saplings,  cottonwood  trees  and  cottonwood  saplings,  to- 
gether amounting  to  the  sum  oi  four  hundred  and  forty 

(c)    I  Starr  &  Curtis'  An.  Stat.  971  ;   73    111.  1S7,  59;    13  Bradw.  206;   Kev    ', 
Stat.  (1877)433;  76  111.  331.     See  81   111.  444- 

(</)  2  Starr  &  Curtis'  An.  Stat.  2388;   Rev.  Stat.  (1S77)  (^99. 


DEBT.  373 

Debt  on  statute,  for  cutting  trees,  etc. — Observations,  etc. 

dollars.  Yet  the  defendant,  though  requested,  lias  not  paid 
to  the  plaintiff  the  last-mentioned  sum  of  money,  or  any 
part  thereof,  but  refuses  so  to  do ;  to  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

In  an  action  on  a  statute,  to  recover  a  penalt}^  the  dam- 
ages to  be  inserted  in  the  declaration  are  merely  nominal. 

The  statute  of  Illinois,  giving  this  action  to  the  owner  of 
the  land,  also  gives  an  action  of  debt  qui  tarn  to  any  per- 
son who  will  first  sue  for  the  penalty — one  half  thereof  to  go 
to  the  person  so  suing,  and  the  other  half  to  the  owner. 

If  deemed  expedient,  the  land  may  be  described  in  the 
declaration,  but  this  does  not  seem  to  be  necessary. 

The  term  owner ^  in  the  statute,  is  held  to  mean  the  per- 
son having  an  estate  in  fee  simple  in  the  land,  {e)  A  le?a 
estate  will  not  authorize  a  recovery  under  the  statute,  {f^ 

The  plaintifl'  must  aver  that  he  was  the  owner  of  the  land  : 
(yg)  consequently  it  is  not  sufficient  to  merely  allege  in  thf^ 
declaration  that  the  defendant  broke  and  entered  the  close 
of  the  plaintiff,  and  cut  and  carried  away  certain  trees  grow- 
ing thereon.  (/?)  And  the  plaintifl'is  bound  to  show  a  title 
in  the  land,  in  fee  simple.  (/)  Actual  possession  of  the 
land  by  the  plaintifl',  claiming  the  fee,  would  be  presump- 
tive evidence  of  title  in  him  to  that  extent;  {J)  but  in  the 
absence  of  evidence  of  this  character,  he  must  produce 
documentary  proof  of  his  title.  An  admission  made  by 
the  defendaiit,  before  the  trial,  and  not  for  the  purposes 
thereof,  that  the  trees  were  cut  on  the  plaintiffs  land,  is  not 
sufficient  evidence  on  this  subject,  {k) 

In  an  action  on  this  statute,  all  the  owners  of  the  land 
must  join.     The  omission  of  one  who  should  have  joined  as 

(c)  3  Scam.  258,  532  ;  4  Scam.  336;   11  111.  22. 

if)  2  Gihn.  132. 

(^)3  Scam.  258,  532;  4  Scam.  336;   11  111.  22. 

(h)  3  Scam.  25S. 

(0  3  Scam.  25S,  532;  4  Scam.  336;   11  111.  22. 

(/)  3  Scam.  532;  5  Gilm.  506.     But  see  4  Scam.  336. 

(^•)  3  Scam.  5J2. 


374  DEBT. 

Debt  on  statute,  for  cutting  trees,  etc. — Observations,  etc. 

plaintiff  is  fatal,  and  does  not  merely  go  in  mitigation  of 
the  recovery,  as  the  penalty  is  not  divisible.  (/) 

The  declaration  should  allege  that  the  defendant  felled 
the  trees  without  having  first  obtained  permission  so  to  do 
from  the  owner  of  the  land,  {m) 

In  order  to  a  recovery,  it  is  necessary  to  show  that  the 
statute  has  been  wilfully  violated,  by  proof  that  the  defend- 
ant in  person  cut  the  trees,  or  by  his  command  or  authority 
induced  another  person  to  do  so.  It  is  not  sufficient  to  show 
that  the  trees  were  cut  by  persons  employed  by  the  defend- 
ant to  cut  trees  on  his  own  land,  and  were  by  them  appro- 
priated to  his  use.  {n) 

Where  the  defendant  has  cut  trees,  knowing  them  not  to  be 
on  land  whereon  he  had  any  right  so  to  do,  the  act  is  pre- 
sumed to  liave  been  wilful ;  and  it  is  not  necessary  that  the 
defendant  should  have  known  that  the  land  belonged  to  the 
plaintiff,  (o) 

Although  the  defendant,  to  be  liable  under  this  statute, 
must  have  committed  the  act  knowingly  and  wilfully,  {p) 
it  is  not  necessary  to  allege  in  the  declaration  that  the  act 
was  "knowingly  and  wilfully"  committed,  the  statute  not 
containing  those  words.  In  declaring  upon  a  statute,  it  is 
a  correct  rule  to  describe  the  cause  of  action,  whatever  it 
may  be,  in  the  words  of  the  statute,  which  words  are  to  be 
construed  to  mean  the  same  thing  in  a  declaration  as  in  the 
statute,  {q) 

The  allegation  of  the  precise  time  of  the  commission  of 
the  act  is  not  essential ;  and  where  a  declaration  charged 
the  cutting  of  trees  on  a  certain  day  "and  on  divers  other 
days  between  that  da3^"  etc.,  it  was  held  sufficient,  on 
demurrer,  though  it  was  urged  that  the  day  first  mentioned 

(/)  II  111.  2-. 

(»0  12  111.  253. 

(«)  2  Scam.  4.60. 

(o)  13  111.  152. 

(/)  12  111.  235  :  2  Scam.  460. 

ig)  23  111.  397. 


DEBT.  375 

Declaration  in  debt,  on  the  statute,  against  drover. 

was  not  within  the  period  fixed  by  the  statute  of  limita- 
tions, (r) 

Instead  of  claiming  a  gross  sum  for  the  cutting  of  the 
w^hole  number  of  trees,  the  declaration  ought,  in  strictness, 
to  show  that  the  defendant  has  become  liable  to  pay  the 
amount  fixed  by  the  statute  for  each  tree  and  sapling  of  the 
different  kinds,  naming  them.  (5) 

A  remedy  on  a  penal  statute  must  be  strictly  pursued 
and  a  plaintiff  can  not  recover  unless  he  brings  himself 
clearly  within  its  provisions.  (/) 

N^o.  16S.      On  ike  statute,  (u)  against  a  drover, yo?'  driving 
off  horses  and  cattle,  ete. 

{Title  of  court,  etc.,  as  in  No.  147,  ante.)  A.  B.,  plaint- 
iff, by  E.  F.,  his  attorney,  complains  of  C.  D.,  defendant, 
of  a  plea  tliat  he  render  to  the  plaintiff'  the  sum  of  tzvo 
thousand  eight  hundred  dollars,  which  he  ewes  to  and  un- 
justly detains  from  him:  For  that  whereas  on,  etc.,  in, 
etc.,  the  plaintiff'  \\as  a  citizen  of  this  state,  and  was  the 
owner  oi  Jive  horses,  each  of  the  value  of  one  hundred 
dollars,  and^ft'c  head  of  neat  cattle,  each  of  the  value  of 
forty  dollars  ;  and  the  defendant,  then  beir.g  a  drover  and 
person  engaged  in  driving  horses  and  cattle  through  a  cer- 
tain part  of  this  state,  to  wit,  through  the  count}^  aforesaid, 
did  then  and  there  drive  off,  and  knowingly  and  willingly 
suffer  and  permit  to  be  driven  off',  the  said  horses  and  neat 
cattle  of  the  plaintiff',  from  the  premises  of  the  plaintiff',  {or 
"from  the  range  in  which  his  stock  then  usually  ran,")  to 
a  distance  exceeding  five  miles  from  the  said  premises  {or 
"range")  ;  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided  :  Whereby,  and  b}'  force  of  the  said 
statute,  an  action  has  accrued  to  the  plaintiff' to  demand  of 
the  defendant  the  sum  of  two  hundred  dollars  for  each  of 
the  said  horses  so  driven  away  as  aforesaid,  and  the  sum 
of  eighty  dollars  for  each  head  of  the  said  neat  cattle  so 
driven  away  as  aforesaid,  together  amounting  to  the  sum 

(/-)  23  111.  397. 
(*)  12  lil.  235. 

\t)  Cases  above  cited;  45  111.  90,  218;  8S  III.  402. 
(?/)   Rev.  Stat,  (1874)  441  ;   Rev.  Slat.  (1877)  435. 


376  DEBT. 

Declaration  in  debt,  on  the  statute,  against  drover. 

oi  fourteen  hundred  dollars,  parcel  of  the  said  sum  of  tzvo 
thousand  eis^ht  hundred  dollars  above  demanded. 

{Second  count.)  And  whereas  also  on  the  day  afore- 
said, in  the  county  aforesaid,  the  plaintiff  was  a  citizen  of 
this  state,  and  was  the  owner  oi  Jive  other  horses,  each  of 
the  value  of  one  hundred  doW^xs,  ^nd  Jive  other  head  of 
neat  cattle,  each  of  the  value  oi Jorty  dollars;  and  the 
defendant,  then  being  a  drover  and  person  engaged  in 
herding  and  driving  certain  horses  and  cattle  in  a  certain 
part  of  this  state,  to  wit,  in  the  county  aforesaid,  did  then 
and  there  permit  the  last-mentioned  horses  and  neat  cattle 
of  the  plaintiff  to  remain  with  the  defendant's  drove  for  a 
longer  period  than  two  days  and  nights  at  one  time  ;  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided :  Whereby,  and  by  force  of  the  said  statute,  an  ac- 
tion has  accrued  to  the  plaintiff  to  demand  of  the  defend- 
ant the  sum  of  two  hundred  dollars  for  each  of  the  last- 
mentioned  horses  so  permitted  to  remain  with  the  defend- 
ant's drove  as  aforesaid,  and  the  sum  of  eighty  dollars  for 
each  head  of  the  last-mentioned  neat  cattle  so  permitted  to 
remain  with  the  defendant's  drove  as  a-foresaid,  together 
amounting  to  the  sum  oi  fourteen  hundred  dollars,  residue 
of  the  said  sum  of  two  thousand  eight  hundred  dollars 
above  demanded. 

Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  last-mentioned  sum  of  money,  or  any  part 
thereof,  but  refuses  so  to  do  ;  to  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 

The  second  section  of  the  Illinois  statute  concerning 
drovers  provides,  that  "in  any  action  commenced  under  the 
preceding  section,  a  capias  may  issue  against  the  defend- 
ant or  defendants,  upon  the  plaintiff  stating  on  oath  that 
he  believes  some  one  or  more  of  his  cattle  or  other  stock 
has  been  driven  o?i.  by  a  drover,  and  that  he  believes  the 
same  to  be  of  a  certain  value,  to  be  indorsed  on  the  writ ; 
and  the  proceedings  thereon  shall  be  the  same  as  in  other 
actions  commenced  by  capias :  Provided,  however,  that  no 
exception  shall  be  taken  to  the  form  of  the  oath  aforesaid." 
The  third  section  provides,  that  upon  judgment  rendered 
against  the  defendant,  a feri  facias  against  his  goods  and 


DEBT.  377 

Exceptions  and  provisos  in  statutes. 

chattels  may  immediately  issue,  without  affidavit,  unless  an 
appeal  shall  at  once  be  perfected,  iv) 

Proof  that  the  defendant  was  driving  cattle  through  a 
part  of  this  state,  when  some  cattle  of  a  citizen  got  into  the 
drove ;  that  the  defendant  knew  they  were  in  his  drove, 
and  he  himself  aided  in  branding  them  with  the  initial  let- 
ter of  his  name,  and  castrated  a  bull  which  was  among 
the  number  ;  and  that  he  drove  them  twent3-five  miles  from 
their  usual  range,  through  a  thickly  settled  country,  there 
being  a  habitation  on  every  mile  of  the  route, — is  sufficient 
to  support  an  action  for  the  penalty,  under  the  statute,  {zv) 

Exceptions  and  -provisos  in  statutes. — "  In  an  action 
founded  on  a  penal  statute,  the  subject  of  any  exception, 
in  the  enacting  or  -prohibitory  clause  of  the  act,  must  in 
the  declaration  be  excluded  by  averment :  But  of  any 
proviso  or  qualification,  in  a  separate  substantive  clause, 
the  declaration  need  not  take  notice,  {x)  In  the  first  case, 
the  exception  is  an  essential  part  of  the  description  of  the 
offense  or  thing  prohibited  ;  in  the  latter,  the  proviso,  etc., 
is  only  distinct  matter  oi  defense.  Thus,  if  a  statute  enacts 
that  if  any  person,  not  having  a  certain  qualification^  (as 
a  freehold  estate,)  shall  kill  certain  game,  he  shall  incur 
a  certain  penalt}' ;  the  declaration,  in  an  action  on  the  stat- 
ute, must  aver  that  the  defendant  had  not  such  a  freehold. 
But  if  the  act  contains  a  separate  proviso,  that  if  he  shall 
have  obtained  a  license  for  the  killing  from  a  magistrate, 
he  shall  not  be  liable  to  a  conviction  ;  it  need  not  be  stated, 
that  he  had  no  such  license.^'  (j) 

{v)   Rev.  Stat.  (1874)  441;   Rev.  Stat.  (1877)  435. 
(w^  38  111.  196. 

(*)  I  Burr.  153;   I  T-  R.  141  ;  6  lb.  559;  7  lb.  27;  8  lb.  542;  \  East,  646; 
i  McNall.  Ev.  544. 
(^)  Gould's  PI.  166 


378  DEBT. 

Declaration  on  statute,  against  sheriff,  by  prisoner,  etc. 


A^o.  169.      On  the  stahitc,  [z)  against  a  sheriffs  for  not  ad- 
mitting attorney  to  see  prisoner. 

(Title  of  courts  etc.,  as  in  No.  147,  ante.)  A.  B., 
plaintiff,  by  E.  F.,  his  attorney,  complains  of  C.  D.,  de- 
fendant, of  a  plea  of  debt :  For  that  whereas  the  defend- 
ant, on,  etc.,  was  sheriff  of  the  county  aforesaid,  and  as 
such  sheriff  there  had  the  custody  of  the  plaintiff,  who  was 
then  imprisoned  and  restrained  of  his  liberty,  in  the  com- 
mon jail  of  the  count}^  aforesaid,  on  a  certain  charge  of 
theretofore  and  then  alleged  against  him  ;  and  the  plaint- 
iff then  and  there  desiring  to  see  and  consult  one  L.  M., 
then  a  practicing  attorney  at  law  of  this  state,  then,  and 
there  requested  the  defendant  to  admit  the  said  L.  M.,  to  see 
and  consult  the  plaintiff,  alone  and  in  private,  at  the  jail 
aforesaid ;  and  although  the  said  L.  M.  was  then  and  there 
ready  and  willing,  and  offered,  to  see  and  consult  the  plaint- 
iff as  aforesaid,  and  although  there  was  then  and  there  no 
imminent  danger  of  the  escape  of  the  plaintiff,  yet  the  de- 
fendant did  not  nor  would  then,  or  at  any  other  time,  admit 
the  said  L.  M.  so  to  see  and  consult  the  plaintiff,  alone  and 
in  private,  at  the  said  jail,  as  aforesaid,  but  refused  so  to  do  ; 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided  :  Whereby,  and  by  force  of  the  said  statute,  an 
action  has  accrued  to  the  plaintiff  to  demand  of  the  defend- 
ant the  sum  of  one  hundred  dollars.  Yet  the  defendant, 
though  requested,  has  not  paid  to  the  plaintiff  the  said  sum 
of  money,  or  any  part  thereof,  but  refuses  so  to  do ;  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

The  statute  of  Illinois  provides,  that  "all  public  officers, 
sheriffs,  coroners,  jailers,  constables  or  other  officers  or  per- 
sons having  the  custody  of  any  person  committed,  impris- 
oned or  restrained  of  his  liberty  for  any  alleged  cause  what- 
ever, shall,  except  in  cases  of  imminent  danger  of  escape, 
admit  any  practicing  attorney  at  law  of  this  state,  whom 
such  person  so  restrained  of  his  liberty  may  desire  to  see 
or  consult,  to  see  and  consult  such  person  so  imprisoned, 

(s)  Rev.  Stat.  (1S74)  387;  Rev.  Stat.  (1S77J  3S3. 


DEBT.  379 

Declaration  on  statute — landlord  against  tenant,  for  double  value. 

alone  and  in  private,  at  the  jail  or  other  place  of  custody ; 
and  when  any  such  prisoner  is  about  to  be  i  cmoved  beyond 
the  limits  of  this  state,  by  any  person  or  public  officer,  un- 
der any  pretense  whatever,  he  or  she  shall  at  all  times  be 
entitled  to  reasonable  delay  for  the  purpose  of  obtaining 
counsel,  and  of  availing  iiimself  or  herself  of  tne  laws  of  this 
state  for  the  security  of  personal  libert3^"  Any  violation 
of  this  act  subjects  the  person  offending  to  a  forfeiture  of 
one  hundred  dollars,  to  be  recovered  by  action  of  debt,  in 
any  court  of  competent  jurisdiction. 

No.  170.  On  the  statute,  [a)  by  landlord  against  ten- 
ant, for  double  value,  for  not  quitting  in  pursuance  of 
notice,  etc. 

{Commence  as  in  last  precedent.)  For  that  whereas  the 
defendant,  at  and  before  the  time  of  the  making  of  the  de- 
mand and  giving  of  the  notice  hereinafter  mentioned,  and 

from  thence  until  and  upon  the day  of,  etc. ,  {^t/ie  day 

zvhen  the  tenancy  determined,)  held  and  enjoyed  a  certain 
parcel  of  land,  with  the  appurtenances,  situate,  etc.,  as 
tenant  thereof  to  the  plaintiff  {Iiere  state  the  tenancy,  zuliich 
may  be  as  follows — )  from  3'ear  to  year,  for  so  long  time  as 
the  plaintiff  and  the  defendant  should  respectively  please, 
the  reversion  of  the  said  parcel  of  land,  with  the  appurte- 
nances, during  the  said  tenancy,  belonging  to  the  plaintiff, 
to  wit,  in  the  county  aforesaid ;  and  thereupon,  while  the 
defendant  so  held  and  enjoyed  the  said  tenements,  and  while 
the  said  reversion  so  belonged  to  the  plaintiff,  as  aforesaid, 
to  wit,  on,  etc.,  (^the  date  of  the  notice,)  he,  the  plaintiff, 
there  demanded  and  required  of  the  defendant,  and  gave 
him  a  notice  in  writing,  to  deliver  the  possession  of  the  said 

tenements  to  the  plaintiff  on  the  said day  of,  etc.,  on 

which  day  the  term  of  the  defendant  in  the  said  tenements 
expired  :  Nevertheless  the  defendant,  not  regarding  the 
statute  in  such  case  made  and  provided,  did  not  nor  would 
at  that  time  deliver  the  possession  of  the  said  tenements  to 
the  plaintiff,  but  refused  so  to  do,  and  there  wilfully  held 
over  the  said  tenements,  after  the  said  demand  and  notice 
so  made   and  given,  and  after  the  expiration  of  the  said 

(a)  Rev.  Stat.  (1S74)  658;  Rev.  Stat,  (1S77)  627. 


38o  DEBT. 


Debt  on    statute. 


term  as  aforesaid,  for  the  space  of then  next  fol- 
lowing, during  all  which  time  the  defendant  there  kept  the 
plaintift'  out  of  the  possession  of  the  said  tenements,  (he, 
the  plaintiff,  during  all  that  time,  being  there  entitled  to  the 
possession  thereof,)  contrary  to  the  form  of  the  said  statute. 
And  the  plaintiff  avers,  that  the  said  tenements,  during  the 
time  last  mentioned,  were  of  the  yearly  value  of dol- 
lars. By  means  of  which  premises,  and  by  force  of  the 
said  statute,  an  action  has  accrued  to  the  plaintiff  to  demand 

of  the  defendant  the  sum  of dollars,  being  at  the  rate 

of  double  the  yearly  value  of  the  said  tenements  for  the 
time  the  plaintiff  was  so  kept  out  of  the  possession  thereof 
as  aforesaid. 

{Add  tzuo  counts  fo7'  use  and  occu-pation — see  No.  154, 
ante — and  the  account  stated,  and  conclude  as  follozus ;) 

Yet  the  defendant,  though  requested,  has  not  paid  to  the 
plaintiff  the  several  sums  of  money  above  demanded,  to- 
gether amounting  to  the  sum  of dollars,  or  any  part 

thereof,  but  refuses  so  to  do  ;  to  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc.  {h) 

Where  the  tenant  gives  notice  to  quit,  and  does  not  de- 
liver possession  accordingly,  he  forfeits  "double  the  rent 
or  sum  which  would  otherwise  have  been  due,  to  be  col- 
lected in  the  same  manner  as  the  rent  otherwise  due  should 
have  been  collected. "(c) 

Debt  is  frequently  the  remedy  on  statutes,  either  at  the 
suit  of  the  party  grieved  or  of  a  common  informer,  {d)  It 
is  given  against  a  railroad  company  for  extortion,  or  for 
making  any  unjust  discrimination  as  to  passenger  or  freight 
rates,  or  the  rates  for  the  use  and  transportation  of  rail- 
road cars,  or  in  receiving,  handling  or  delivering  freights.  {e\ 
And  against  railroad  companies,  their  officers,  agents  and 
employees,  and  every  owner,  lessee,  manager  or  employee 
of  any  warehouse,  who  shall  willfully  neglect  to  make  and 
furnish  any  report  to  the  railroad  and  warehouse  commis- 
sioners, as  required  by  the  statute  ;  or  who  shall  willfully  ana 

{b)  Sec  Chit.  PI.  493, 

(^)   Rev.  Stat.  (1874)  658;  Rev.  Stat,  (1877)  627;   I  Chitty  PI.  112. 

{d)   I  Chitty  PL  112;   Bac.  Ab.  Debt,  8. 

{e)  Rev.  Stat.   (1874)  817;  Rev.  Stat.   (1S77)  781.  i 


DEBT.  381 

Debt  on  statute. 


unlawfully  hinder,  delay,  or  obstruct  said  commissioners  in 
the  discharge  of  the  duties  imposed  upon  them.  (/")  All 
such  prosecutions  shall  be  in  the  name  of  the  People  of 
the  State  of  Illinois,  and  all  moneys  arising  therefrom  shall  be 
paid  into  the  State  treasury  by  the  sheriff  or  other  officer  col- 
lecting the  same.  The  act,  however,  is  not  to  be  construed 
so  as  to  prevent  any  person  from  prosecuting  any  qui  tarn 
action,  as  authorized  by  law,  and  of  receiving  suck  part  of 
the  amount  recovered  in  such  action  as  is  or  maybe  provided 
under  any  law  of  this  State,   {g) 

If  any  railroad  corporation,  or  any  of  its  agents,  servants  or 
employees,  shall  violate  any  of  the  provisions  of  the  statute  in 
relation  to  fencing  and  operating  railroads,  such  corporation, 
agent,  servant  or  employee  shall  severally  be  liable  to  a  fine 
of  not  less  than  $10,  nor  more  than  ^200,  to  be  recovered  in 
an  action  of  debt,  in  the  name  of  the  People  of  the  State  of 
Illinois,  for  the  use  of  any  person  aggrieved,  before  any  Court 
of  competent  jurisdiction.     {Ji) 

"  If  any  county  clerk  shall  issue  a  license  for  the  marriage 
of  a  man  under  the  age  of  twenty-one  years,  or  of  a  woman 
under  the  age  of  eighteen  years,  without  the  consent  of  his 
or  her  father,  (or  if  he  is  dead  or  incapable,  or  not  residing 
with  his  family,  of  his  or  her  mother  or  guardian,  if  he  or  she 
have  one,)  first  had  thereto,  he  shall  forfeit  and  pay  the  sum  of 
1^300  for  each  offense,  to  be  recovered  by  such  father,  mother, 
or  guardian,  in  an  action  of  debt,  in  any  court  of  competent 
jurisdiction."'     {i) 

"  If  any  county  clerk  shall  refuse  or  neglect  to  register  and 
file  any  marriage  certificate  according  to  law,  for  more  than 
thirty  days  after  the  same  is  returned  to  him  for  that  purpose 
(his  fees  therefore  being  paid),  he  shall  forfeit  and  pay  ^100, 
to  be  recovered  by  the  party  injured,  in  an  action  of  debt,  in 
any  court  of  competent  jurisdiction."     (j) 


(/)  Rev.  Slat.   (1874I  832;  Tev.   Stat.  (1S77)  794. 
(S-)  lb. 

(A)  Rev.  Stat.  (1874)  813;  Rev.  Slat.  (1S77I  775. 
(1)  Rev.  Stat.  (1874)  695;  Rev.  Stat  (1877)  659. 
U)  lb. 


382  DEBT. 


Debt  on  statute. 


If  any  minister,  judge  or  justice  of  the  peace,  or  any  other 
officer  or  person  or  persons,  shall  celebrate  a  marriage 
without  a  license  having  been  first  obtained  therefor  as 
provided  by  law,  and  if  any  minister,  judge  or  justice  of  the 
peace,  having  celebrated  a  marriage,  or  any  clerk  or  secretary 
of  any  society,  church  or  denomination  among  whom  a  mar- 
riage is  celebrated,  and  whose  duty  it  shall  be  to  make  and 
return  a  certificate  of  such  marriage,  shall  fail  to  make  and 
return  to  the  county  clerk,  such  certificate  in  the  time  and 
manner  provided  by  law,  he  shall  forfeit  and  pay  ^loo,  to  be 
recovered  in  the  name  of  the  People  of  the  State  of  Illinois,  in 
an  action  of  debt,  in  any  court  of  competent  jurisdiction,     (k) 

In  a  penal  action,  at  the  suit  of  a  common  informer,  the 
declaration  should  not  conclude  ad  damnum.     (/) 

In  such  actions  it  is  not  essential  that  the  suit  should  be 
brought  by  the  state's  attorney,  and  in  the  name  of  the 
People,  but  any  informer  may  sue,  in  the  common-law 
mode.  The  42d  section  of  the  act  of  November  5,  1849, 
provides  that  the  penalty  may  be  sued  for  by  the  "district 
attorney,"  and  in  the  name  of  the  People;  and  the  word 
may  would  unquestionably  be  construed  to  mean  shall,  in 
all  cases  where  the  public,  alone,  has  an  interest,  or  where 
a  duty  is  imposed  upon  a  public  officer ;  also  where  the 
public  or  a  private  individual  has  a  claim,  dcjure,  that  the 
power  shall  be  exercised.  But  under  the  38th  section  of 
the  same  act,  (now  amended  by  the  act  of  1869,)  a  common 
informer  may  sue  in  his  own  name,  as  well  for  the  People 
as  for  himself,  to  recover  this  penalty.  The  right  of  the 
public  to  sue  under  the  42d  section,  and  that  of  the  informer 
under  the  38th,  depend  upon  which  shall  first  commence 
suit,  {h) 


{k)  lb. 

(/)   I  Chitty  PI.  325,  3S6  ;   28  111.   283. 

{h)  43  111.  4S0;  3S  111.  414;  28  111.  283.     See  4  Scam.  16^. 


DEBT.  3S3 

Defenses  to  the  action. 


A  judgment  against  the  defendant,  in  an  action  of  debt 
qui  tam,  of  this  character,  should  be  for  a  recovery  of  the 
debt,  one-half  to  the  People  and  one-half  to  the  informei, 
and  should  award  execution  in  that  form.  (/)  The  person 
in  whose  name  the  suit  is  brought  is  the  "prosecuting  wit- 
ness," within  the  meaning  of  the  statute,  although  he  may 
not  testify  in  the  cause.  (/) 

While  the  law  does  not  require  the  same  completeness 
of  proof,  in  cases  of  this  kind,  that  is  required  in  criminal 
prosecutions  where  life  or  liberty  is  in  peril,  yet  the  evidence 
must  be  such  as  to  induce  a  reasonable  and  well-founded 
belief  of  the  guilt  of  the  defendant.  A  very  slight  pre- 
ponderance of  evidence  will  not  suffice,  {k) 

In  an  action  for  a  penalty,  where  any  person  may  pros- 
ecute, a  judgment  in  a  suit  by  A.  may  be  pleaded  in  bar  to 
a  prosecution  by  B.  for  the  same  cause  or  offense.  (/) 

See  the  additional  Illinois  cases  noted  below,  (in) 


DEFENSES  TO  THE  ACTION  OF  DEBT. 

The  rules  which  has^e  been  laid  down  respecting  defenses 
in  the  action  of  assumpsit  are  generally  applicable  in  debt. 
The  pleas  in  abatement,  and  many  of  those  in  bar,  in  as- 
sumpsit, with  a  slight  alteration,  can  be  used  in  this  action  ; 
and  it  is  not  deemed  necessary  or  expedient  to  again  insert 
them  in  this  place  ;  but  a  few  forms  of  pleas  in  bar,  adapted 
to  this  form  of  action,  will  be  here  presented. 

(0  54  III.  356.     See  50  111.  4.8. 

U)  54  111-  356. 
{k)  43  11:.  480. 
(/)  16  III.  352;  38111.414- 

(w)  2  Scam.  265,  461,  561;  2  Gilm.  132;  11  111.  23;  43  111.  199;  45  III. 
90,  218. 


38.J  DEBT. 

Plea  of  7iil  debet. 


Pleas  in  abatement. — For  pleas  in  abatement  and 
proceedings  thereon,  and  general  observations  on  the  sub- 
ject, see  pleas  in  abatement  in  assumpsit.  («) 

Pleas  in  bar.  — The  general  rules  and  observations 
concerning  pleas  in  bar  in  assumpsit  are  for  the  most  part 
applicable  to  picas  of  the  same  nature  in  debt,  {p) 

No.   172.       Plea  0/ Nil.  DEBET. 

In  the Court. 

Term,  18 — . 


Debt. 

And  the  defendant,  by  G.  H.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  v^'hen,  etc.,  and 
says  that  he  does  not  owe  the  said  sum  of  money  above  de- 
manded, or  any  part  thereof,  in  manner  and  form  as  the 
plaintiff  has  above  complained  against  him  ;  and  of  this  the 
defendant  puts  himself  upon  the  country,  etc. 

The  plea  of  nil  debet  is  the  general  issue  in  those  actions 
where  it  is  properly  pleadable.  It  is  a  proper  plea  in  debt 
on  simple  contracts  or  legal  liabilities,  or  for  an  escape,  or 
on  a  penal  statute,  or  when  a  deed  is  mere  inducement  to 
the  action ;  but  not  when  the  action  is  founded  on  a  spe- 
cialty, (as  on  a  bail-bond,  etc.,)  or  on  a  record.  (^)  It  is  a 
good  plea  to  an  action  on  a  justice's  judgment  of  another 
state,  {q) 

As  a  judgment  of  a  court  of  record  of  another  state  is 
conclusive  as  to  the  amount  of  the  debt,  the  plea  of  nil 
debet  is  not  proper  in  an  action  on  such  judgment ;  {r)  but 
it  seems  that  this  plea  is  admissible  in  debt  on  a  judgment 
of  a  court  of  another  state,  when  the  court  had  no  jurisdic- 

(«)  Ante,  p.  144-163. 
(0)  Ante,  p.  163-265. 

(/)  I  Chit.  PI.  422,  423;  Ld.Raym.  1520;  Com.  Dig.  PI.  7,  W.  17;  Salk. 
284,  565 ;  I  Saund.  38 ;  8  Johns.  S3  ;  Breese,  19 ;  3  Scam.  42 ;  13  III.  622. 
iq)  5  Ohio,  545;  2  Pick.  248;  i  Doug,  i ;  i  Blackf.,  note  to  case,  p.  16. 
(032111.305;  55  in.  241. 


DEBT.  385 

Plea  of  nil  debet. 


tion.  (5)  To  an  action  of  debt  on  a  statute,  for  a  penalty, 
nil  debet  is  the  best  general  issue,  but  not  guilty  is  admis- 
sible, {t)  In  debt  for  rent  by  the  lessor  against  the  assignee 
of  the  lessee,  a  plea  of  7u'l  debet  puts  in  issue  the  whole 
declaration,  {n) 

Where  a  deed  is  only  inducement  to  the  action,  and 
matter  of  fact  the  foundation  of  it,  this  plea  may  properly 
be  pleaded ;  as  in  debt  for  rent  due  on  an  indenture  of 
lease,  though  the  plaintiff  has  declared  setting  out  the  in- 
denture, 3''et  as  the  fact  of  the  subsequent  occupation  gives 
the  right  to  the  sum  demanded,  and  is  the  foundation  of  the 
action,  and  the  lease  is  mere  inducement,  the  defendant 
may  plead  i'^// ^^<5^/;  and  for  the  same  reason  this  plea  is 
proper  in  debt  for  an  escape,  or  on  a  devastavit  against  an 
executor,  the  judgment  in  these  cases  being  merely  induce- 
ment, and  the  escape  or  devastavit  the  foundation  of  the 
action.  But  when  the  deed  is  the  foundation  of  the  action, 
although  extrinsic  facts  are  mixed  with  it,  the  defendant 
must  plead  non  est  factum,  and  nil  debet  is  not  a  sufficient 
plea  ;  as  in  debt  for  a  penalty  on  articles  of  agreement,  or 
on  a  bond,  setting  out  the  condition  and  breach,  or  on  a 
bail-bond,  (v) 

The  plea  of  nil  debet,  in  debt  on  a  specialty,  is  not  a 
nullity,  but  is  bad  on  demurrer ;  izv)  and  a  judgment  over 
such  a  plea  unanswered  is  erroneous,  (.r) 

This  plea,  like  the  general  issue  in  assumpsit,  puts  the 
plaintiff  on  proof  of  the  whole  of  the  allegations  in  the  de- 
claration, (jy)  The  language  of  the  plea  puts  in  issue  the 
existence  of  the  debt  at  the  time  of  bringing  the  action  ;  and 

(s)  6  Pick.  232 ;  13  Pick.  53 ;  9  Mass.  462 ;  37  N.  H.  9,  470. 
{()  2  Mass.  521 ;  5  Mass.  266,  270;  i  Chit.  Pi.  42S. 
(«)  8  New  Hamp.  22. 

{.V)  I  Chit.  PI.  423,  424;  Steph.  PI.  174,  n. 

(w)  4  Blackf.  435,  553 ;  5  Blackf.  3 ;  6  Blackf.  162  ;  6  Ind.  113 ;  i  Chit.  PI. 
424. 

Kx)  7  Blackf.  240;  II  Wend.  653 

(j')  I  Cowen,  670;  7  Wend.  456;  2  Cal.  494;  i  Chit.  PI.  422,  424. 

25 


386  DEBT. 

Plea  of  non  est  factum. 


consequently  any  matter  may  be  given  in  evidence,  under 
such  plea, which  shows  that  nothing  was  due  at  that  time, 
as  payment,  or  release,  or  other  matter  in  discharge  of  the 
debt,  {z) 

Where  nil  debet  is  pleaded  to  an  action  on  a  bond,  etc., 
the  plaintiff  ought  to  demur,  for  if  he  does  not  he  wdll  have 
to  prove  every  allegation  in  his  declaration,  and  the  defend- 
ant will  be  at  liberty  to  avail  himself  of  any  ground  of  de- 
fense which  in  general  may  be  taken  advantage  of  under 
this  plea,  (a) 

No.   173.       Pica  ^  NON  EST  FACTUM. 

{Title  of  court.,  etc.,  as  in  last  precedent.)  And  the  de- 
fendant, by  G.  H.,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  says  that  the  supposed 
writing  obligator}'-  {or  "  deed,"  or  "indenture,"  etc..)  in  the 
said  declaration  mentioned  is  not  his  deed ;  and  of  this  he 
puts  himself  upon  the  country,  etc. 

{To  -put  the  ■plaintiff  upon  proof  of  the  execution  of  the 
instrument.,  add  affidavit  as  in  No.  117,  ante,  which  see.) 

In  debt  on  bond,  or  other  specialty,  when  the  deed  is  the 
foundation  of  the  action,  the  plea  of  no7z  est  factum  is 
proper,  either  when  the  plaintiff's  profert  can  not  be 
proved  as  stated,  or  the  deed  was  not  executed,  or  varies 
from  the  declaration,  {h) 

This  plea  may  be  pleaded,  in  Illinois,  notwithstanding  it 
is  not  verified  by  afhdavit,  {c)  though  by  the  statute  a  de- 
fendant can  not  deny  on  the  trial  the  execution  of  any  in- 
strument in  writing,  whether  sealed  or  not,  upon  whicli 
any  action  is  brought,  unless  his  plea  is  verified  by  affida- 
vit, {d)     A  plea  so  verified  puts  the  plaintiff  upon  proof  of 

(s)   I  Cranch,  343;  2  Cal.  494.;   I  Chit.  PI.  422. 

(a)   III  111.  342;  86  111.  329;    I  Chit.  PI.  424;  64  111.  30. 

{h)   I  Chit.  PI.  424;   10  Johns.  47;  8  Conn.  63. 

(f)  2  Scam.  56.     See  71  111.  422;  75  111.  638, 

{d)  2  S'.an-  &  Curtis'  An.  Stat.  179S ;  Rev.  Stat,  (1S77)  738  ;  48  111.  138.  See 
I  Gilm.  525;  84  111.  538;  72  111.  340;  88  111.  513;  2  Scam.  575;  59  111.  182; 
S7  111.  49;  92  111,  549;  8  Bradw.  69 j  13  Bradw.  3S5. 


DEBT.  387 

NoH  est  factum  and  nil  debet. 

the  execution  of  the  instrument  sued  on,  but  the  affidavit  is 
not  evidence  for  the  defendant,  {e) 

A  defendant  may  give  in  evidence,  under  the  plea  of 
noil  est  factum^  that  the  deed  was  delivered  to  a  third 
person  as  an  escrow, '(though  it  is  more  usual  to  plead  the 
fact,)  (_/)  or  that  it  was  void  at  common  law  ab  initio,  (g) 

The  plea  of  non  est  factum  only  denies  the  giving  of  the 
deed  ;  and  it  is  not  necessary  for  the  plaintiff,  on  the  issue 
presented  by  that  plea,  to  prove  the  averments  of  other 
matters,  or  the  breaches,  contained  in  his  declaration,  as  the 
plea  admits  them.  {]i) 

A  notice  of  special  matter  of  defense  may  be  given  with 
the  plea  of  non  est  factum,  (i) 

If  this  plea  is  pleaded,  although  not  verified  by  affidavit, 
it  requires  the  instrument  to  be  produced  on  the  trial,  (J) 
or  at  least  to  be  accounted  for. 

See  the  observations  under  the  plea  o{  iion  est  factttm,  in 
covenant,  ante  (No.  143)- 

No.  174.     Non  est  factum,  and  nil  debet,  to  debt  on 
bond  and  simple  contract. 

{Title  of  courts  etc.,  as  in  No.  172,  ante.)  And  the  de- 
fendant, by  G.  H.,  "his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and,  as  to  the  said  first  count 
of  the  said  declaration,  says  that  the  supposed  writing  ob- 
ligatory therein  mentioned  is  not  his  deed  :  And  of  this  he 
puts  himself  upon  the  country,  etc 

And  as  to  the  said  second,  third,  fourth  and  last  counts 
of  the  said  declaration,  the  defendant  says  that  he  does  not 
owe  the  said  sums  of  money  therein  mentioned,  or  any  or 
either  of  them,  or  any  part  thereof,  in  manner  and  form  as 

(e)   12  111.  64. 

(/)4Esp.  225;  6  Mod.  217;  I  Salk.  274;  i  Chit.  PI.  424.    See  43  111.  134. 
{g)  10  Mass.  267,  274;  14  Pick.  303,  405;  i  Chit.  PI.  424. 
(//)  7  Wend.  194;  10  Johns.  47;  7  Blackf.  514;  i  Ohio,  330;  5  Ohio,  169; 
6  Ohio,  z$;  I  Chit.  PI.  42S.     See  43  111.  134. 
(«■)  4  Wend.  519;  6  Ohio,  35 ;  5  Ohio,  340. 
(y)  4  Blackf.  417.     See  i  Chit.  PI.  424. 


388  DEBT. 

Plea  of  non  est  factum  after  craving  oyer,  etc. — Object  and  effect  of  oyer. 

the  plaintiff  has  above   complained  against  him  :   And  of 
this  the  defendant  puts  himself  upon  the  country,  etc. 

A''o.  I'jS'     Pica  ^NON  EST  FACTUM,  after  craving  oyer ^ 

etc. 

{Title  of  courts  etc.,  as  in  No.  172,  ante.)  And  the  de- 
fendant, by  G.  H.,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  craves  03^er  of  the  sup- 
posed writing  obligatory  in  the  said  declaration  mentioned, 
and  it  is  read  to  him,  etc.  He  also  craves  oyer  of  the  con- 
dition of  the  said  supposed  writing  obligatory,  and  it  is  read 
to  him  in  these  words  :  "Whereas  {Jiere  set  forth,  verba- 
tim, the  recitals,  if  any,  and  the  condition.)  Which  being 
read  and  heard,  the  defendant  says  that  the  said  supposed 
writing  obligatory  is  not  his  deed  ;  and  of  this  he  puts  him- 
self upon  the  country,  etc. 

If  the  action  is  upon  an  indenture,  etc.,  say — "craves 
oyer  of  the  supposed  indenture  {or  as  the  case  may  be)  in 
the  said  declaration  mentioned,  and  it  is  read  to  him  in 
these  words:  {setting  forth  the  instrument,  verbatim.) 
Which  being  read  and  heard,  the  defendant  says,"  etc. 

It  is  not  usual  to  plead  non  est  factum,  setting  out  the 
condition,  or  the  indenture,  etc.,  on  oyer,  except  where  the 
defendant  pleads  double,  {k) 

The  practical  use  of  demanding  oyer,  in  pleading,  is  to 
enable  the  party  demanding  it  to  recite  upon  the  record  the 
instrument  pleaded  against  him,  and  thus  avail  himself, 
ufon  the  face  of  the  record,  of  anything  in  the  writing 
which  may  aid  him  in  meeting  the  allegations  of  his  ad- 
versary— a  writing  thus  set  out  on  oyer  being  considered  as 
a  part  of  the  last  pleading  of  the  of^osite  party.  Thus  to 
debt  on  bond,  the  defendant  having  recited  the  condition, 
on  oyer,  is  enabled  to  avail  himself  of  it,  by  pleading  or 
demurring,  as  his  case  may  require.  Oyer  is  of  course 
unnecessary  when  the  instrument  is  truly  set  out,  in  hccc 
verba,  in  the  previous  pleading. 


(^0  3  Chit  PI.  953,  954,  notes. 


DEBT.  389 

Special  non  est  factum. 


On  the  subject  of  oyer,  see  i  Chit.  PL  369  to  375  ; 
Gould's  PL,  chap.  8,  sees.  32  to  64 ;  Steph.  PL  66  to  72  ; 
2  Gross'  StaL  286. 

Special  NON  est  factum. — "In  actions  founded  on 
deeds,  the  defendant  may,  instead  of  pleading  non  est 
/actum  in  common  form,  allege  any  special  matter,  which 
admits  the  execution  of  the  writing  in  question,  but  which 
shows,  nevertheless,  that  it  is  not  in  law  his  deed;  and  may 
conclude  with  non  est  factum :  As  that  the  writing  was 
delivered  to  J.  S.  as  an  escrow,  to  be  delivered  over,  on  a 
certain  condition,  which  has  not  been  complied  with,  'and 
so  is  not  his  act :'  Or,  that  the  writing  /las  been  altered  by 
the  plaintiff,  since  its  delivery,  '  and  so  is  not  his  act :'  Or, 
that  the  defendant  was,  at  the  time  of  making  'the  waiting, 
di  feme  covert;  'and  so  it  is  not  her  act.'"  "In  a  plea  of 
this  kind,  the  latter  part  (the  non  est  /actum)  is  merely  an 
in/ercnce  from  the  special  matter  which  precedes  it :  The 
word  '5C»'  being  used  in  an  illative  sense,  and  conveying 
the  same  meaning  as  the  word  'therefore.'  The  special 
matter  then  merely  shows  how  and  why  the  instrument  is 
not  the  defendant's  act ;  and  on  the  trial  of  the  issue,  the 
evidence  on  both  sides  is  confined  to  the  special  matter 
alleged."  (/) 

Duress,  infanc}^  or  other  matter  which  renders  the  deed 
merely  voidable,  can  not  properK^  be  pleaded  in  this 
form,  (w) 

The  effect  of  a  demurrer  to  a  special  non  est  /actum  is 
strictly  analogous  to  a  demurrer  to  evidence ;  the  question 
of  law  being,  on  a  demurrer -to  such  plea,  whether  the  facts 
therein  specially  set  forth  are  sufficient  in  law  to  maintain 
the  general  issue,  (with  which  it  concludes,)  m  favor  of  the 
party  pleading  them,  {n) 

The  better  authority  appears  to  be,  that  this  plea  should 

(/)  Gould's  PI.  312. 
(»»)  Id.  300,  301,  314. 
(«)  Id.  314. 


390  DEBT. 

Plea — bond  delivered  as  escrow. 

conclude  to  the  country  ;  (o)  though  according  to  some 
opinions  it  may  and  should  conclude  with  a  verification. 
But  a  conclusion  with  a  verification  "  would  alter  the  essen- 
tial character  of  the  plea,  and  convert  it  into  a  mere  special 
■pica  aniounting  to  the  genet' al  issue,  which  is,  regularl}^ 
inadmissible."  (J>) 

No.  176.     Plea  that  bond  was  delivered  as  an  escrow. 

{First  -plea,  non  est  factum,  as  ante.  No.  173  ;  secondplea, 
onerari  non,  etc.,  as  in  next  form,  to  the  asterisk,  and  then 
proceed:^  that  the  said  writing  in  the  said  declaration  men- 
tioned was  made  by  the  defendant,  on,  etc.,  aforesaid,  to 
secure  the  repayment  of  a  certain  sum  of  money  then  lent 
by  the  plaintiff  to  one  E.  P.,  and  was  delivered  by  the  de- 
fendant to  one  G.  H.,  as  an  escrow,  to  be  kept  by  him  on 
this  special  condition,  that  is  to  say,  that  {Jierc  set  forth  the 
condition,  according  to  the  facts,  in  this  manner — )  if  the 

said  E.  F.  should,  within  the  space  of months  then 

next  following,  secure  the  repayment  of  the  said  sum  of 
money  to  the  plaintiff,  by  a  mortgage  on  a  certain  parcel 
of  land  of  the  said  E.  F.,  situate,  etc.,  then  the  said  writing 
should  be  immediately  discharged,  annulled  and  held  for 
nothing,  and  re-delivered  to  the  defendant ;  but  that  in  de- 
fault of  the  said  E.  F.'s  so  securing  the  repayment  of  the 
said  sum  of  money  as  aforesaid,  then  the  said  writing  of 
the  defendant  should  stand  and  be  against  him  in  full  force. 
And  the  defendant  further  says,   that  within  the   space  of 

months  from  the  time  of  the  making  and  delivering 

of  the  said  writing  as  an  escrow  to  the  said  G.  H.  as  afore- 
said, to  wit,  on,  etc.,  in,  etc.,  the  said  E.  F.  did  secure  the 
repayment  of  the  said  sum  of  money  to  the  plaintiff,  by  a 
mortgage  upon  the  said  parcel  of  land,  which  said  moi;t- 
gage  the  plaintiff  then  and  there  accepted  and  received  as 
a  security  for  the  repayment  of  the  said  sum  of  money  so 
by  him  lent  to  the  said  E.  F.  as  aforesaid ;  whereby  the 
said  writing  became  and  was  wholly  discharged  and  an- 
nulled. And  so  the  defendant  says,  that  the  said  writing 
is  not  his  deed ;  and  of  this  he  puts  himself  upon  the  coun- 
tr}^,  etc. 

(o)  Gould's  PI.  314;  3  Chit.  PI.  962,  n. ;  i   id.  475;  3  Scam.  iSS. 
(/)  Gould's  Pi.  315.     See  43  HI-  i34- 


DEBT.  391 

Onerari  non. 


It  seems  that  the  plea  must  show  to  whom  the  bond 
was  delivered ;  [q)  and  it  is  no  escrow  if  delivered  to  the 
obligee,  {r) 

An  escrow  is  a  deed  conditionally  delivered  to  a  stranger, 
and  not  to  the  obligee  or  grantee  himself,  to  be  held  until 
a  certain  condition  shall  be  performed,  and  then  to  be  de- 
livered to  the  obligee  or  grantee.  Until  the  condition  is 
performed,  and  the  deed  delivered  over,  it  does  not  take 
effect.  (5)  A  relation  back  to  the  first  delivery,  so  as  to 
give  the  deed  effect  from  that  time,  is  however  allowed  in 
cases  where  necessary  to  render  the  deed  valid — as  where 
•^feme  sole  makes  a  deed,  and  delivers  it  as  an  escrow,  and 
then  marries  before  the  second  delivery,  {f) 

As  has  been  already  observed,  the  delivery  of  a  deed  as 
an  escrow  may  be  given  in  evidence  under  the  plea  of  non 
estfacittm,  though  it  is  more  usual  to  plead  it.  {iC) 

No.  177.     Onerari  non. 

( When  -pleaded  as  a  second  or  siibseqiient  -plea,  com- 
mence tlms :)  And  for  a  further  plea  in  this  behalf,  the 
defendant  says  that  he  ought  not  to  be  charged  with  the 
said  debt  by  virtue  of  the  said  supposed  writing  obligatory, 
(or  "  indenture,"  <:/c.,  or  "the  said  writing,")  because  he 
says,  (*)  that  {here  state  the  stibject-niatter  of  the  defense, 
and  conclude  as  follows — ') :  And  tliis  the  defendant  is 
ready  to  verify  ;  wherefore  he  prays  judgment  if  he  ought 
to  be  charged  with  the  said  debt  by  virtue  of  the  said  sup- 
posed writing  obligatory  {or  "indenture,"  etc^ 

Where  the  validity  of  the  deed  is  disputed,  or  where  an 
heir  pleads  rien  per  descent,  the  defendant  should  say 
onerari  non  debet,  (as  above,)  and  not  actionem  non;  and 

(  q)  5  Bac.  Abr.  160,  Oblig.  C. 

(r)  Hob,  246;  Ventr.  9;  2  Stark.  Ev.  271  ;  5  Blnckf.  iS  ;  8  Mass.  230;  5 
Gilm.  31.     See  5  Gilm.  31 ;  77  111.  475. 

(«)  2  Johns,  248;  Perk,  137;  8  Johns.  520 ;  II  III.  229;  31  111.  55S ;  34 
111.  13. 

(/)  2  Bl.  Com.  307;  2  Bouv.  Inst.  n.  2024;  4  Kent  Com.  446. 

(m  I  Chit.  PI.  424.     See  43  111.  134. 


592  DEBT. 

Plea  of  tender,  etc. 


the  plea  should  describe  the  deed  as  a  writings  or  supposed 
writing  obligatory,  (or  "indenture,"  etc.,)  and  should  not 
admit  that  it  is  a  deed,  iy) 

No.  178.     Pica  of  tender^  to  debt  on  simple  contract — Nil. 
DEBET  as  to  -part,  and  tender  as  to  residue. 

{Title  of  court,  etc.,  as  in  No.  172,  ante.)  And  the  de- 
fendant, by  G.  H.,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  as  to  the  several  sums 
of  money  in  the  said  declaration  mentioned,  and  thereby 

demanded,  except  as  to  the  sum  of dollars,  {the  stun 

tendered^  parcel  thereof,  says  that  he  does  not  owe  the 
same,  or  any  part  thereof,  to  the  plaintiff,  in  manner  and 
form  as  the  plaintiff  has  above  complained  against  him, 
the  defendant :  And  of  this  he  puts  himself  upon  the  coun- 
try, etc. 

And  as  to  the  said  sum  of dollars,  parcel,  etc.,  the 

defendant  says  that  the  plaintiff  ought  not  to  have  his  afore- 
said action  against  him,  the  defendant,  to  recover  any  dam- 
ages by  reason  of  the  non-payment  of  that  sum  of  money, 
because  he  says,  that  he  was  when  the  same  became  due, 
and  from  thence  hitherto  has  been,  and  still  is,  ready  to  pay 

to  the  plaintiff  the  said  sum  of dollars,  parcel,  etc.,  to 

wit,  in  the  county  aforesaid ;  and  that  after  the  same  be- 
came due,  and  before  the  commencement  of  this  suit,  to 
wit,  on,  etc.,  the  defendant  was  there  ready  and  willing, 
and  tendered  and  offered,  to  pay  to  the  plaintiff  the  said 
sum  of  dollars,  parcel,  etc.,  to  receive  which  of  the  defend- 
ant he,  the  plaintiff,  then  and  there  wholly  refused;  and 
the  defendant  now  brings  the  said  sum  of  money,  so  ten- 
dered, into  the  court  here,  ready  to  be  paid  to  the  plaintiff, 
if  he  will  accept  the  same.  And  this  the  defendant  is  ready 
to  verify ;  wherefore  he  prays  judgment  if  the  plaintiff 
ought  to  have  his  aforesaid  action  to  recover  any  damages 
by  reason  of  the  non-payment  of  the  said  sum  of dol- 
lars, parcel,  etc. 

If  the  money  has  already  been  paid  into  court,  then  m- 
-stead  of  alleging  the  bringing  in  thereof,  as  in  the  above 


{v)  1  Chit.  PI.  471 ;  3  Chit.  PI.  955,  n. 


DEBT.  393 

Plea  of  nul  tiel  record. 


form,  say — "and  the  defendant  avers  that  he  has  paid  the 

said  sum  of  money,  so  tendered,  into  the  said Court 

of,  etc.,  ready  to  be  paid,"  etc.  A  tender  must  be  pleaded. 
See  the  form  No.  103,  ante,  and  the  observations  there- 
under. 

No.   179.       Pica  of  NUL  TIEL  RECORD. 

{Title  of  court,  etc.,  as  in  No.  172,  ante.)  And  the  de- 
fendant, by  G.  H.,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  sa3^s  that  there  is  not 
any  record  of  the  supposed  recovery  in  the  said  declaration 

mentioned,  remaining  in  the  s^id  Court  of,   etc.,  in 

manner  and  form  as  the  plaintiff  has  above  in  his  said  dec- 
laration alleged  :  And  this  the  defendant  is  ready  to  ver- 
ify ;  wherefore  he  pra3^s  judgment  if  the  plaintiff  ought  to 
have  his  aforesaid  action  against  him,  etc. 

It  seems  the  words  "and  this  the  defendant  is  ready  to 
verify,"  are  not  necessary,  (w) 

It  is  the  proper  practice  for  the  court  to  determine  the 
issue  on  the  plea,  by  an  inspection  of  the  transcript  of  the 
record  ;  and  if  this  fails  to  show  jurisdiction  of  the  person 
of  the  defendant,  it  can  not  be  aided  by  other  evidence,  {oc) 

The  plea  of  mil  tiel  record  draws  nothing  in  question 
but  the  existence  of  the  record,  {y)  The  party  can  not, 
therefore,  under  such  plea,  set  up,  in  contradiction  of  the 
record,  that  he  was  not  served  with  process,  or  that  he  did 
not  appear  by  attorney.  (^)  But  where  the  record  shows 
an  appearance  by  attorney,  the  defendant  may  plead  and 
prove  that  the  attorney  had  no  authority  to  appear  for  him.  {a\ 

It  is  held  that  the  defense  that  a  judgment  of  another 
state,  on    which    an    action    is  brought,  was   obtained   by 

(w)3  Chit.  PI.  995,  n;  Com.  Dig.  PI.  E.  33. 
(x)  20  Ark.  12;  I  Saund.  92,  n.  3;  i  Spencer,  114, 
(j)  8  Ohio,  43. 

{z)  10  Ohio,  100;  2  McLean,  511;  6  Pick.  232;  6  Wend.  447;  3  Gilm, 
197;  Breese,  331. 
(«)  I  Gilm.  197;  4  Scam.  536;  6  Pick.  232;  6  Wend.  447. 


394  DEBT. 

Plea  of  jiiil  tiel  record. 


fraud,  is  not  available  at  law,  and  that  the  proper  course  is 
to  seek  relief  by  bill  in  chancery,  impeaching  the  judgment 
for  that  cause  ;  {h)  but  this  doctrine  is  denied,  (c) 

A  variance  between  the  record  declared  on  and  the  one 
produced  in  evidence,  can  be  taken  advantage  of  by  a  plea 
of  mil  tiel  record,  {d) 

The  plea  of  mil  tiel  record,  in  scire  facias  on  a  mort- 
gage, only  puts  in  issue  the  execution  and  registry  of  such 
mortgage,  [e] 

This  plea  is  improper  in  an  action  of  debt  on  an  appeal- 
bond.  (/) 

In  general,  the  conclusion  of  a  plea  of  mil  tiel  record  to 
the  country,  is  wrong ;  but  such  defect  can  only  be  taken 
advantage  of  by  a  special  demurrer,  {g) 

It  was  held  in  England,  that  the  plea  of  mil  tiel  record^ 
pleaded  to  an  Irish  judgment,  must  conclude  to  the  coun- 
try ;  for  though  since  the  union  of  England  and  Ireland 
such  judgment  was  a  record,  yet  it  was  only  provable  by 
an  examined  copy  on  oath,  the  verity  of  which  was  only 
triable  by  a  jury,  iji) 

And  in  the  case  of  Baldwin  v.  Hale,  17  Johns.  N.  Y. 
272,  it  was  held  that  a  circuit  court  of  the  United  States, 
in  relation  to  a  state  court,  was  to  be  regarded  as  a  court 
of  another  government,  and  its  records,  therefore,  must  be 
considered  as  foreign  records,  and  their  verity  must  be 
tried  by  a  jury.  But  under  the  act  of  Congress  which  pro- 
vides for  the  manner  of  proving  the  records  of  the  courts  of 
the  various  states,  by  the  attestation  of  the  clerk,  and  the 

(*)  8  Ohio,  108;  Story's  Eq.  PI.    sec.  426. 

(c)  4  Scam.  536,  and  cases  cited;  i  Gilm.  197;  15  Johns.  121 ;  19  Johns. 
162. 

((f)  2  Paine  C.  C  R.  209;  21  Missouri,  557;  8  Johns.  S3;  Stra.  1721;  i 
Saund.  92,  n.  3 ;  2  Mod.  41;  Breese,  125,  219. 

(c)  14  111.  213. 

(/'jSoIU.  174;  72  111.  340, 

{g)  SBlackf.  326;  Co.  lit.  117,  b.     See  i  Chit.  PI.  475,  476. 

(A)  5  East,  473  ;  2  Smith,  25.     See  i  Chit.  Tl.  475. 


DEBT.  395 

Replication  to  plea  of  nul  tiel  record — Plea  of  duress. 

seal  of  the  court  annexed,  with  the  certificate  of  the 
judge,  {i)  the  proving  of  such  records  by  examined  copy  is 
not  necessary,  and  the  issue  of  mil  tiel  record  is  tried  by 
the  court,  by  an  inspection  of  the  record. 

No.  i8o.     Rcflication  to  flea  of  nul  tiel  record. 

In  the Court. 

Term,  i8 — . 

A.  B.  ^ 
vs.     >  Debt. 

C.  D.  3  And  the  plaintiff,  as  to  the  plea  of  the  defend- 
ant by  him  first  above  pleaded,  says  that  he,  the  plaintiff, 
by  reason  of  anything  in  that  plea  alleged,  ought  not  to  be 
barred  from  having  his  aforesaid  action,  because  he  says, 
that  there  is  such  record  of  the  said  recovery,  remaining  in 
the  said Court  of,  etc.,  as  he  has  above  in  his  said  dec- 
laration alleged :  And  this  the  plaintiff  is  ready  to  verify- 
by  the  said  record,  etc.  ;  and  he  prays  that  the  same  may 
be  seen  and  inspected  by  the  court  here,  etc. 

]Vo.  i8i.     Plea  of  duress — menace  to  kill. 

{First  -pica,  non  est  factum,  as  ante,  No.  173  ;  second 
flea,  onerari  non,  etc.,  as  in  No.  177,  ante,  to  the  asterisk, 
andthcn  proceed — )  that  the  plaintiff,  just  before  the  making 
of  the  said  writing  in  the  said  declaration  mentioned,  to  wit, 
on,  etc.,  in,  etc.,  threatened  the  life  of  the  defendant,  unless 
he,  the  defendant,  would  make,  seal  and  deliver  the  writing 
aforesaid ;  and  the  defendant  did  thereupon  then  and  there, 
by  reason  of  such  threats,  and  in  fear  thereof,  make,  seal 
and  deliver  the  said  writing  :  And  this,  etc.  {concluding 
with  a  verification,  as  in  No.  177,  ante.) 

The  plea  may  allege  a  battery,  and  menace  of  further 
battery — or  a  battery,  and  fear  of  mayhem — or  duress  of 
imprisonment,  etc.    See  the  precedents,  3  Chit.  PI.  964,  965 . 

Fear  of  unlawful  imprisonment  will  constitute  a  case  of 
duress  -per  minas,  and  avoid  a  contract,  {j) 

(?)  Rev.  Stat.  (1877)  84.     See  7  Cranch,48i;  3  Wheat.  234;  4  Scam.  536. 
(7)  Co.  Lit.  253,  6;  2  Inst.  4S3;  5  Hill,  (N.  Y.)  154. 


396  DEBT. 

Replication  to  plea  of  duress — Plea  of  set-off,  etc. 

The  general  rule  is,  that  the  imprisonment  or  duress 
must  either  be  tortious,  and  without  authority,  or  be  an 
abuse  of  lawful  authority  to  arrest,  to  constitute  duress  by 
imprisonment,  (k) 

See  the  Illinois  cases  noted  below,  on  this  subject.  (/) 

JVo.  182.     Replication  to  flea  of  duress,  No.  179. 

(Similiter  to  non  est  factum,  as  ante.  No.  69.)  And  the 
plaintiff,  as  to  the  plea  of  the  defendant  by  him  secondly 
above  pleaded,  says  that  he,  the  plaintiff,  by  reason  of  any- 
thing in  that  plea  alleged,  ought  not  to  be  barred  from 
having  his  aforesaid  action,  because  he  says,  that  the  de- 
fendant of  his  own  free  will  made,  sealed,  and  delivered  to 
the  plaintiff  the  said  writing  obligatory,  and  not  by  reason 
of  the  supposed  threats  in  the  said  second  plea  mentioned, 
or  in  fear  thereof,  in  manner  and  form  as  the  defendant  has 
above  in  that  plea  alleged  :  And  this  the  plaintiff  prays 
may  be  inquired  of  by  the  country,  etc. 

No.  183.     Plea  of  set-off ,  to  debt  on  a  money  bond  with  a 

■penalty, 

{If  -pleaded  as  a  first  plea,  commence — after  the  enti- 
tling— "And  the  defendant,  by  G.  H.,  his  attorney,  comes 
and  defends,  etc.,  when,  etc.,  and  says  that  the  plaintiff 
ought  not,"  etc.  If  as  a  second  or  subsequent  plea,  com- 
mence thus:)  And  for  a  further  plea  in  this  behalf,  the 
defendant  says  that  the  plaintiff  ought  not  to  have  his 
aforesaid  action  against  him,  the  defendant,  because  he 
says,  (*)  that  at  the  time  of  the  commencement  of  this  suit 
there  was  due  from  the  defendant  to  the  plaintiff,  upon  the 
said  writing  obligatory,  by  the  said  condition  thereof,  for 
the  principal  and  interest  in  the  said  condition  mentioned, 

the  sum  of dollars  :     And  the  defendant  further  says, 

that  the  plaintiff  was  before  and  at  the  time  of  the  com- 
mencement of  this  suit,  and  still  is,  .ndebted  to  him,  the 
defendant,  in  a  much  larger  sum  of  money  than  the  said 

(k)  2  Kent  Com.  565  ;  i  Aik.  409;  15  John=;.  259  ;  6  Ma<:s.  511  ;  16  111.  93. 
See  16  111.  358;  34  111.  448;  39  111.  242;  41  111.  197;  45  111.  213. 

(/)  16  111.  93,  358;  52  III.  20;  53  111.  129;  34  111.  448;  39  III.  242:  41  111, 
197;  45  111.  213;  56  111.  542;  63  111.  165;  83  111.  331;  85  111.  464;  96  111, 
301;  104  111.  122;  105  111.  88, 


DEBT.  397 

Plea  of  paj-ment — Failure  of  consideration. 

sum  SO  due  from  the  defendant  to  the  plaintiff  upon  the  said 
writing  obligatory,  that  is  to  say,  in  the  sum  of  dol- 
lars, for  {Jiei'e  state  the  subject-matter  of  the  set-off);  which 
said  sum  of  money  so  due  from  the  plaintiff  to  the  defend- 
ant, as  aforesaid,  or  so  much  thereof  as  shall  be  necessary 
in  this  behalf,  the  defendant  is  ready  and  willing,  and 
offers,  to  set-off  and  allow  against  the  said  sum  of  money 
so  remaining  due  by  the  said  condition  of  the  said  writing 
obligatory,  according  to  the  form  of  the  statute,  etc.  And 
this  the  defendant  is  ready  to  verify ;  wherefore  he  prays 
judgment  if  the  plaintiff  ought  to  have  his  aforesaid  ac- 
tion, etc. 

See  form  No.  go^  ante,  and  the  observations  thereunder. 
In  the  above  plea,  and  the  next  following,  oyer  should  be 
craved,  (as  in  No.  175,)  if  the  declaration  does  not  set  forth 
the  condition  and  breach.  But  if  non  est  factum,  craving 
oyer,  (No.  174?)  is  pleaded,  then  it  is  not  necessary  to  again 
demand  oyer  in  a  subsequent  plea. 

Ko.  184.     Pica  of  payment — to  debt  on  bond.     (Solvit 

AD  DIEM.) 

{As  in  last  -precedent  to  the  asterisk,  and  then  proceed — ) 

that  on  the  said day  of,  etc.,  in  the  said  condition  of 

the  said  writing  obligatory  mentioned,  he,  the  defendant, 

paid  to  the  plaintiff  the  said  sum  of dollars,  in  the 

said  condition  mentioned,  together  with  all  interest  then 
due  tliereon,  according  to  the  form  and  effect  of  the  said 
condition,  to  wit,  in  the  county  aforesaid  :  And  this,  etc. 
{concluding  with  a  verification,  as  in  last  precedent.^ 

If  payment  after  the  day  is  pleaded,  {solvit  post  diem,) 

then  say  that  "  after  the  said day  of,  etc.,  in  the  said 

condition  mentioned,  and  before  the  commencement  of  this 
suit,  to  wit,  on,  etc.,  he,  the  defendant,  paid,"  etc.;  and 
omit  the  words  ' '  according  to  the  form  and  effect,"  etc. 

iVb.   185.     Plea   of  failure  of  consideration — to  debt  on 
specialty. — [30  ///.  329.] 

{First  plea,  non  est  factum,  as  ante,  IVo.  173.)     And  for 
a  further  plea  in  this  behalf,  the  defendants  say  that  the 


398  DEBT. 

Plea  of  performance. 


plaintiffs  ought  not  to  have  their  aforesaid  action  against 
them,  the  defendants,  because  they  say,  that  the  several 
supposed  causes  of  action  in  the  said  declaration  mentioned 
are  one  and  the  same,  to  wit,  the  supposed  cause  of  ac- 
tion in  the  said  first  count  mentioned,  and  not  different 
causes  of  action ;  and  that  by  the  writing  in  the  said  first 
count  mentioned  the  plaintiffs  did  covenant  that  they 
would,  on  the  payment  of  the  money  mentioned  in  the  said 
writing,  convey  to  the  defendants  the  land  in  the  said  writ- 
ing mentioned,  and  in  and  by  their  deed  of  conveyance  for 
that  purpose  would  covenant  to  warrant  the  title  so  to  be 
conveyed  to  the  defendants,  against  any  persons  claiming 
by,  through  or  under  the  patentee  of  the  said  land  :  And 
the  defendants  aver,  that  neither  at  the  time  of  the  making 
of  the  said  writing,  nor  at  any  time  since,  have  the  plaint- 
iffs been  the  owners  of  the  patent  title  to  the  said  land,  or 
had  any  right  or  title  to  the  same  whatever  :  And  the  de- 
fendants further  aver,  that  the  obtaining  of  the  title  to  the 
said  land  was  the  only  consideration  and  object  of  the 
making  of  the  said  writing  by  the  defendants  as  aforesaid : 
Wherelbre,  by  reason  of  the  plaintiffs'  not  having  any  title 
to  the  said  land,  the  said  covenant  in  the  said  writing  men- 
tioned was  then  and  there  worthless,  and  the  consideration 
of  the  said  writing  has  wholly  failed.  And  this  the  de- 
fendants are  ready  to  verify ;  wherefore  they  pray  judg- 
ment, etc. 

If  in  the  cause  in  which  this  plea  was  pleaded,  the  dec- 
laration fully  set  out  the  contract,  then  it  was  unnecessary  to 
allege  in  the  plea  that  the  contract  contained  a  certain  cov- 
enant, since  that  already  appeared  on  the  record ;  and  if 
the  declaration  did  not  set  out  the  entire  writing,  so  as  to 
show  such  covenant,  then  the  plea  should  have  set  it  forth 
on  oyer. 

JVo.  i86.     Plea  of  ^erfoi'inance  generally. 

{As  in  No.  183,  ante,  to  the  asterisk,  and  then  -pro- 
ceed— )  that  the  defendant  did  from  time  to  time,  and  at  all 
times,  after  the  making  of  the  said  writing  obligatory  and 
the  said  condition  thereof,  well  and  truly  keep  and  perform 
all  and  singular  the  matters  and  things  in  the  said  condidon 
specified,  on  his  part  to  be  kept  and  performed,  according 


DEBT.  399 

Plea  of  non  damnijicatus. 

to  the  tenor  and  effect  of  the  said  condition  :     And  this,  etc. 
{concluding  with  a  verification^  as  in  No.  183,  ante.) 

As  to  this  plea,  see  the  remark  following  the  next  form. 

A  defendant  can  not  plead  performance  of  the  condition, 
without  praying  oyer,  and  setting  it  out  in  hcBC  verba,  (n) 
But  where  the  condition  is  already  set  out  in  the  declara- 
tion, or  in  a  previous  plea  craving  oyer,  it  is  unnecessary 
to  again  demand  oyer,  and  set  it  out. 

A  plea  of  performance  generally,  to  a  declaration  making 
negative  averments  in  assigning  breaches,  is  not  good.  (0) 

No.  187.     Plea  o/"non  damnificatus. 

{As  in  No.  183,  ante,  to  the  asterisk,  and  then  proceed — ) 
that  the  plaintiff  has  not,  at  any  time  since  the  making  of 
the  said  writing  obligatory  and  condition  thereof  hitherto, 
been  in  anywise  damnified  by  reason  of  any  matter  or  thing 
in  the  said  condition  mentioned  :  And  this,  etc.  {conclud- 
ing -with  a  verification,  as  in  No.  183,  ante.) 

(As  to  craving  oyer,  see  the  remark  under  the  preceding 
form.) 

It  would  seem  that  performance  generally,  and  non  dam- 
nificatus, should,  properl}^  only  be  pleaded  where,  the 
condition  and  breach  are  not  set  forth  in  the  declaration. 
In  Illinois,  it  is  provided  by  statute,  that  "in  actions  brought 
on  penal  bonds,  conditioned  for  the  performance  of  cov- 
enants, the  plaintiff  shall  set  out  the  conditions  thereof,  and 
may  assign  as  many  breaches  as  he  may  think  fit ;"  (^) 
and  it  is  the  practice,  in  all  actions  on  bonds  with  condi- 
tions, to  set  out  the  condition,  and  assign  the  breaches,  in 
the  declaration,  instead  of  making  such  assignment  in  the 
replication,  as  was  the  practice  in  England  in  many  c.ises.  {q^ 


(«)  2  Saund.  409.  n.  2  ;   3  Chit.  PI.  986,  n. 

{o\  3  Blackf.  117  ;  86  III.  329;  92  Til.  549. 

(>)  Rev.  Stat.  (1877)  736.     .See  19  III.  428;   51  111.  180. 

((/)  See  3  Chit.  Fl,  1177-1179. 


400  DEBT. 

Pica,  no  rent  in  arrear — Plea  of  no  award. 

A  plea  of  non  damnijicatiis  is  good  only  when,  the  action 
is  upon  an  indemnity-bond,  (r)     It  is  sujfficient  when  the  con 
dition  of  the  bond  is  merely  to  indemnify,  but  when  the 
condition  is  for  the  performance  of  any  particular  act,  the 
performance  must  be  specially  pleaded.  (5) 

]Vo.  188.     Plea — to  debt  on  a  demise^  for  rent — no  rent  in 
arrear.     {See  No.  154,  ante.) 

{As  in  lYo.  183,  ante,  to  the  asterisk,  and  then  proceed — ) 
that  no  part  of  the  said  rent  in  the  said  declaration  men- 
tioned is  in  arrear  or  unpaid,  in  manner  and  form  as  the 
plaintiff  has  above  in  his  said  declaration  alleged :  And 
of  this  the  defendant  puts  himself  upon  the  country,  etc. 

This  plea  may  be  pleaded  in  debt  for  rent,  though  not 
in  covenant,  [f)  But  as  nil  debet  may  be  pleaded,  which 
puts  in  issue  the  whole  declaration,  there  would  seem  to  be 
no  advantage  in  pleading  rien  en  arrere.  It  was  formerly 
held  that  this  plea  should  conclude  "and  so  the  defendant 
does  not  owe,"  etc.  {nil  debet.) 

An  eviction  may  either  be  pleaded,  or  given  in  evidence 
upon  nil  debet,  in  debt,  but  in  covenant  it  must  be  pleaded,  {u) 

JVo.   189.     Plea — to  declaration  on  arbitration-bond — no 
azvard  made. 

{As  in  No.  183,  ante,  to  the  asterisk,  and  then  proceed — ) 
that  the  said  arbitrators  named  in  the  said  condition  did 

not,  nor  did,  any  two  of  them,  on  or  before  the  said 

day  of,  etc.,  mentioned  in  the  said  condition,  make  any 
award  in  writing,  under  their  hands,  or  the  hands  of  any 
two  of  them,  {this  must  be  according  to  the  avei'ment  in 
the  declaration,)  of  and  concerning  the  premises  in  the  said 
condition  mentioned,  and  so  referred  as  aforesaid,  ready  to 
be  delivered  to  the  said  parties  in  difference  :     And  this  the 


(r)  I  Ind.  190  ;  l8  Bradw.  547  ;  4  Blackf.  120. 
{s)  I  Saund.  117,  n.  i  ;  3  Chit.  PI.  985,  n. ;  20  Johns.  153. 
{t)    I  Chit.  PI.  423;  Cowp.  588;   I  Rich.  C.  P.  500. 
{u)  I  Chit.  PI.  423;  3  Chit.  PI.  993;  I  Saund.  204,  n.  2. 


i 


DEBT.  401 

riea — to  deljt  on  replevin-bond — merits  not  tried,  etc. 

defendant    is    ready    to    verify;    wherefore    he    prays    judg- 
ment, etc. 

See  observation  as  to  oyer,  under  No.  183,  ante. 

No.    190.     Plea — to  declaration  on  replevin-bond — that  merits 
were  not  determined  in  replevin-suit,  etc. 

{First  plea,  non  est  factum,  as  ante.  No.  173.)  And  for 
a  further  plea  in  this  behalf,  as  to  any  damages  by  reason  of 
the  said  supposed  breach  {or  "  breaches")  of  the  said  con- 
dition of  the  writing  aforesaid,  except  as  to  the  sum  of  one 
cent,  the  defendants  say  that  the  plaintiff  ought  not  to  have 
his  aforesaid  action  against  them,  the  defendants,  to  recover 
any  greater  damages  than  that  sum,  because  they  say,  that 
[Jiej'e  state  enough  of  the  'pj'ocecdings  in  the  replevin- suit  to 
shoiv  that  the  merits  were  not  determined  in  the  trial  thereof — 
for  example,  as  follozvs — )  the  said  judgment  in  the  said 
action  of  replevin,  in  the  said  declaration  mentioned,  was 
given   upon  a  trial   of  that  action,  in  the  said  court,  at  the 

said  term  thereof,  in  the  said  year   18 — ;  and  that 

the  said  trial  was  had  solely  upon  a  certain  issue  joined 
upon  a  certain  replication  of  the  said  C.  D.  to  a  certain  plea 
of  the  said  J.  K.  {the  defendant  in  irpleviu)  denying  the  ju- 
risdiction of  the  said  court  in  that  behalf,  (which  said  issue 
was  then  and  there  found  for  the  said  J.  K.,)  and  upon  no 
other  issue  whatsoever  :  And  so  the  defendants  say,  that 
the  merits  of  the  case  were  not  determined  in  the  trial  of  the 
said  action  of  replevin.  And  the  defendants  further  say,  that 
the  said  goods  and  chattels  in  the  said  writ  of  replevin  men- 
tioned, at  the  said  time  when,  etc.,  were  the  property  of 
the  said  C.  D.,  and  not  of  the  said  J.  K.,  as  by  the  said 
declaration  in  this  behalf  is  above  supposed.  And  this  the 
defendants  are  ready  to  verify;  wherefore  they  pray  judg- 
ment if  the  plaintiff  ought  to  have  his  aforesaid  action  to 
recover  against  them  any  greater  damages  than  the  said  sum 
of  one  cent,  in  this  behalf,  etc. 

It  is  provided   by  statute,  in  Illinois,  that  "  in  all  actions 

upon  replevin-bonds,  where  the  merits  of  the  case  have  not 

been   determined   in   the  trial  of   the  action   of   replevin  in 

which   the   bond  was    given,    the  defendant  may  plead  the 

26 


402  DEBT. 

Plea  of  former  conviction — to  debt  on  statute. 

above  facts,  and  also  his  or  her  title  to  the  property  in  dispute 
in  said  action  of  replevin."  (v) 

In  /i'///^  V.  Raynsey,  13  111.  619,  the  court  says  :  "  Enough 
of  the  proceedings  in  the  former  action  should  be  set  forth 
to  enable  the  court  to  decide  on  demurrer  whether  the  right 
of  property  has  already  been  determined.  If  the  suit  was 
dismissed,  that  fact  should  be  stated.  If  there  was  a  trial 
the  plea  ought  to  show  what  were  the  issues,  and  how  they 
were  disposed  of.  The  plea  was  also  defective  in  professing 
to  answer  the  entire  cause  of  action.  Even  if  the  goods 
replevied  belonged  to  the  plaintiffs  in  the  action  of  replevin, 
and  the  right  of  property  was  not  determined  in  that  suit, 
the  obligee  would  still  have  a  cause  of  action  on  the  bond, 
and  be  entitled  to  recover  nominal  damages,  for  a  failure  to 
make  return  of  the  goods,  as  required  by  the  judgment  of  the 
court." 

No.    191.     Plea — to   debt  on   statute — former    conviction   for 

same  offense. 

{First  plea,  nil  debet,  as  ante,  No.  172.)  And  for  a 
further  plea  in  this  behalf,  the  defendant  says  that  the 
plaintiff  ought  not  to  have  his  aforesaid  action  against  him, 
the  defendant,  because  he  says,  that  after  the  committing 
of  the  said  offense  in  the  said  declaration  mentioned,  and 
before  the  commencement  of  this  suit,  to  wit,  on,  etc.,  in, 
etc.,  aforesaid,  one  E.  F.  went  before  G.  H.,  Esq.,  then 
.and  still  being  one  of  the  justices  of  the  peace  in  and  for 
the  said  county,  and  informed  the  said  G.  H.  that  the  de- 
fendant, on,  etc.,  in,  etc.,  did,  etc.,  {here  state  the  offense, 
as  in  the  complaint ;)  and  thereupon  such  proceedings 
were  had  before  the  said  G.  H.,  the  justice  aforesaid,  that 
afterwards,  to  wit,  on,  etc.,  the  defendant  was  there  duly 
convicted  of  the  said  offense,  according  to  the  form  of  the 
statute  in  such  case  made  and  provided;  which  said  judg- 
ment of  conviction  is  yet  in  full  force  and  effect :  And  the 
defendant  avers  that  he,  the  defendant,  who  is  sued  by  the 

{v)  2  Starr  &  Curtis'  An.  Stat  2018;  Rev.  Stat.  (1877)  8ll ;  3  Bradw,  24;  7 
Bradw.  87;  13  111.  619;  19  111.  604;  59  111.    115;  80  111.  513;   10   Bradw.  263. 


DEBT.  403 

Demurrer,  after  craving  oyer. 

name  of  C.  D.  in  this  suit,  and  the  said  C.  D.  in  the  said 
complaint  and  conviction  named-,  are  one  and  the  same 
person,  and  not  other  or  different ;  and  that  the  said  offense 
in  the  said  declaration  m.entioned,  and  the  said  offense  in 
the  said  complaint  charged,  and  whereof  the  defendant  was 
so  convicted  as  aforesaid,  were  done  and  committed  by  the 
defendant  at  one  and  the  same  time,  and  are  in  fact  the  very 
same  offense,  and  not  other  or  different  offenses.  And 
this  he  is  ready  to  verify;  wherefore  he  prays  judg- 
ment, etc. 

In  an  action  for  a  penalty,  where  any  person  may  prosecute, 
a  judgment  in  a  suit  by  A.  may  be  pleaded  in  bar  to  a  prose- 
cution by  B.  for  the  same  cause  or  offense,  (zu) 

Demurrer,  after  craving  oyer. — "  In  some  cases,  where  the 
plaintiff  in  the  declaration  partially  states  a  deed  which  is 
defective,  or  contains  matter  qualifying  the  part  stated,  the 
defendant  may  crave  oyer  of  the  deed,  and  set  forth  the  whole, 
thereby  making  it  a  part  of  the  declaration,  and  then  demur 
either  in  respect  of  the  defect  in  the  deed,  or  the  improper 
manner  in  which  the  plaintiff  has  stated  it ;  and  this  is  the 
proper  course,  when  upon  oyer  it  would  appear  that  a  bail- 
bond  is  defective.  So  a  deed  untruly  stated  in  a  plea,  being 
set  out  upon  oyer  by  the  plaintiff,'  becomes  part  of  the  plea, 
and  if  it  thereby  appear  that  the  plea,  is  false,  the  plaintiff 
need  not  show  any  matter  of /act  in  his  replication,  to  main- 
tain his  action,  but  may  demur;  for  it  is  a  general  rule  that 
an  indenture  set  out  upon  oyer  becomes  part  of  the  preceding 
plea."  {x) 

When  it  is  desired  to  crave  oyer  and  demur  to  a  declara- 
tion, proceed  as  in  form  No.  175,  ante,  or  in  the  remark 
thereunder,  setting  out  the  indenture,  etc.,  and  then  say: 
"  Which  being  read  and  heard,  the  defendant  says  that  the 

(a/)  16  111.  352.     See  39  111.  205  ;  46  111.  90;  50  111.  176: 
(x)  I  Chit.  PI.  57S  ;    Gould's   PL  409,  419.     See   I    Chit.    PI.  424,  425  ;   i 
Saund.  295,  b;  i  B.  &  C.  358;  2  D.  &  R.  662. 


404  DEBT. 

Replications,  etc. — Reference. 

said  declaration,  and  the  matters  therein  contained,  in  man- 
ner and  form  as  the  same  are  above  pleaded  and  set  forth, 
are  not  sufficient  in  law," — and  so  on,  as  in  an  ordinary 
demurrer. 

Oyer  is  craved  and  granted  by  the  court,  where  some 
writing  is  in  possession  of  the  opposite  party;  {y)  but  not 
of  an  instrument  not  under  seal ;  {2)  or  of  a  record,  (a) 

For  replications,  rejoinders  and  demurrers,  the  pleader  is 
referred  to  the  forms  in  assumpsit,  anU,  Chapter  III. 

(y)   16  111.307;  17111.388- 
(s)   27  111.  400;  48  111.  313. 

(a)  Breese,  219;  17  111.  3S7 ;  46  111.  69.  See  5  Gilm.  80;  33  111.  388;  36 
111.  125;  41  111.  203. 


DISTRESS  FOR  RENT.  405 

Landlord's  lien. 


CHAPTER  VII. 


DISTRESS    FOR    RENT. 


The  provisions  of  the  statute  of  Illinois,  relating  to  the 
action  of  detinue,  having  been  repealed  by  the  statute  of  1874, 
that  portion  of  this  work,  in  the  former  editions,  devoted  to 
detinue  will  be  occupied  in  the  present  edition  in  considering 
the  proceedings  of  Distress  for  Rent. 

This  remedy  is  of  great  antiquity,  and  is  said  to  have  pre- 
vailed among  the  Gothic  nations  of  Europe  from  the  break- 
ing up  of  the  Roman  Empire.  The  English  statutes  since 
the  days  of  magna  cJiarta  have,  from  time  to  time,  extended 
and  modified  its  features  to  meet  the  exigencies  of  the  times. 

(^) 

The  legislature  of  this  State  has  generally,  and  with  some 
modifications  and  alterations,  adopted  the  English  provisions, 
recognizing  the  old  remedy  as  a  salutary  and  necessary  one, 
equally  condusive  to  the  security  of  the  landlord  and  to  the 
welfare  of  society. 

Landlord's  lien. — The  statute  of  Illinois  provides  that 
"  every  landlord  shall  have  a  lien  upon  the  crops  grown  or 
growing  upon  the  demised  premises  for  the  rent  thereof, 
whether  the  same  is  payable  wholly  or  in  part  in  money  or 
specific  articles  of  property  or  products  of  the  premises,  or 
labor,  and  also  for  the  faithful  performance  of  the  terms  of 
the  lease.  Such  lien  shall  continue  for  the  period  of  six 
months  after  the  expiration  of  the  time  for  which  the  premi- 
ses were  demised."  [b) 

{a)  Bouv.  L.  D.  485. 

(/')  2  Starr  &  Curtis'  An.  Stat.  1504;  Rev.  Slat.  (1877)  630.  See  77  111.  206; 
112  111.  247;  70  111.  677;  16  Braflw.  214;  78  111.  62;  76  111.  261;  67  111.  395; 
46  111.  2S8;  86  111.  591,  497;   104  111.  160. 


4o6  DISTRESS  FOR  RENT. 

What  property  may  be  distrained. 

The  lien  of  the  landlord,  upon  crops  growing  or  grown, 
does  not  depend  upon  the  levy  of  a  distress  warrant,  but  is 
given  by  the  statute,  so  that  an  attaching  creditor  cannot,  by 
bringing  an  attachment  before  the  issuing  of  the  distress  war- 
rant, gain  any  precedence,  {c) 

A  purchaser  of  grain  raised  by  a  tenant,  upon  which  a 
landlord  has  a  lien  for  rent,  with  knowledge  of  that  fact,  and 
that  the  rent  is  not  fully  paid,  will  be  liable  to  the  landlord  in 
trover  for  the  rent  due,  to  the  extent  of  the  value  of  the  grain 
purchased  by  him.  [d) 

The  lien  attaches  upon  the  crops  grown  upon  the  demised 
premises  in  any  given  year,  for  the  rent  of  such  year,  from  the 
.  ame  of  the  commencement  of  their  growth,  whether  the  rent 
is  then  due  or  not.  {e) 

What  property  may  be  distrained. — "  In  all  cases  of  distress 
for  rent,  the  landlord,  by  himself,  his  agent  or  attorney,  may 
seize  for  rent  any  personal  property  of  his  tenant  that  may  be 
found  in  the  county  where  such  tenant  shall  reside  ;  and  in 
no  ca"se  shall  the  property  of  any  other  person,  although  the 
same  may  be  found  on  the  premises,  be  liable  to  seizure  for 
rent  due  from  such  tenant."  (/") 

If  property  of  a  third  party,  temporarily  in  the  possession 
of  a  tenant,  is  taken  under  a  distress  against  the  tenant,  the 
landlord  will  be  liable  to  the  owner  for  its  value.  ( g) 

"  The  same  articles  of  personal  property  which  are,  by  law, 
exempt  from  execution,  except  the  crops  grown  or  growing 
upon  the  demised  premises,  shall  also  be  exempt  from  dis- 
tress for  rent."   {li) 

"  When  a  tenant  abandons  or  removes  from  the  premises, 
or  any  part  thereof,  the  landlord,  or  his  agent  or  attorney  may, 

(c)  78  111.  62. 

(d)  77  111.  211. 

(e)  76  111.  261. 

(/")  2  Starr  &  Curtis'  An.  ?tat.  1500;  II  Bradvv.  206;  Rev.  Stat.  (1877)628; 
75  111,  167.     See  112  111.  247. 
■(^)  67111.  481. 

(A)  2  lb.  See  4  Bradw.  575;  Rev.  Stat.  (1877)  630,  485;  67  111.  244.  See 
53  111.  460;  47  111.  331;  15  111  290;  17  111.  18;  I  Gilm.  233',  3  Gilm.  578. 
See  II  Bradw.  206. 


DISTRESS  FOR  RENT.  407 

What  property  may  be  distrained. 

seize  upon  any  grain  or  other  crops  grown  or  growing  upon 
the  premises  or  part  thereof  so  abandoned,  whether  the  rent 
is  due  or  not.  If  such  grain  or  other  crops  or  any  part  there- 
of is  not  fully  grown  or  matured,  the  landlord,  or  his  agent  or 
attorney,  shall  cause  the  same  to  be  properly  cultivated  and 
harvested  or  gathered,  and  may  sell  and  dispose  of  the  same, 
and  apply  the  proceeds,  so  far  as  may  be  necessary,  to  com- 
pensate him  for  his  labor  and  expenses,  and  to  pay  the  rent: 
Provided,  the  tenant  may,  at  any  time  before  sale  of  the  prop- 
erty so  seized^  redeem  the  same  by  tendering  the  rent  due  and 
the  reasonable  compensation  and  expenses  of  the  cultivation 
and  harvesting  or  gathering  the  same,  or  he  may  replevy  the 
property  seized."  (z) 

"  That  if  any  tenant  shall,  without  the  consent  of  his  land- 
lord, sell  and  remove,  or  permit  to  be  removed,  or  be  about 
to  sell  and  remove,  or  permit  to  be  removed  from  the 
demised  premises,  such  part  or  portion  of  the  crops  raised 
thereon,  as  -jhall  endanger  the  lien  of  the  landlord  upon  such 
crops  for  the  rent  agreed  to  be  paid,  it  shall  and  may  be  law- 
ful for  the  landlord  to  institute  proceedings  by  distress' before 
the  rent  is  due,  as  is  nov/  provided  by  law,  in  case  of  the 
removal  of  the  tenant  from  the  demised  premises  ;  and  there- 
after the  proceedings  shall  be  conducted  in  the  same  manner 
as  is  now  provided  bylaw  in  ordinary  cases  of  distress,  where 
the  rent  is  due  and  unpaid."     (_/') 

"  When  the  rent  is  payable  wholly  or  in  part  in  specific 
articles  of  property  or  products  of  the  premises,  or  labor,  the 
landlord  may  distrain  for  the  value  of  such  articles,  products 
or  labor."     Qt) 

"  The  right  of  the  landlord  to  distrain  the  personal  goods 
of  the  tenant,  shall  continue  for  the  period  of  six  months  after 
the  expiration  of  the  term  for  which  the  premises  were  demised 
or  the  tenancy  is  terminated."     (/) 

(j)  Rev.  Stat.  (1S74)  661  ;   Rev.  Stat.  (1877)  630;  60  111.  380. 
(/)  Laws  of  1877,  p.  129;  Rev.  Stat.  (1S77)  630. 
{k)  Rev  Stat.  (1874)  661 ;  Rev.  Stat.  (1877)  630. 
(/)  Id. 


4o8  DISTRESS  FOR  RENT. 

What  property  may  be  distrained. 

A  distress  warrant  issued  after  six  months  from  the  time  of 
the  termination  of  the  lease,  is  nuH  and  void.     (;/^) 

No.  ig2.     Warrant  of  distress  by  landlord. 
State  of   Illinois. 


County  of  ^ 

To  the  Sheriff  or  any  constable  of  said  county:  (or  E.  F., 
agent  or  attorney). 

Distrain  the  goods  and  chattels  of  C.  D.  which  are  liable  to 
be  destrained,  wherever  they  may  be  found  in  the  county  of 
,  where  the  said  C.  D.  resides,  for  the  sum  of dol- 
lars, being instating  the  time  for  zvhich   rent  is  due),  rent 

due  me  on  the  —  day  of i8 — ,  for*the  premises  now  in 

his  possession,  demised   to   him  by  me,  and  situated   in  said 
county.  , 

Dated  this  —  day  of i8 — . 

A.  B. 

No  description  of  the  demised  premises  is  necessary  to  be 
given  in  a  distress  warrant.     (;/) 

A  landlord  is  permitted  to  make  a  reasonable  distress,  and 
he  is  not  bound  to  confine  himself  to  the  precise  amount  of 
rent  due.  If  he  were  knowingly  to  claim  more  rent  than  was 
due,  for  the  purpose  ol  oppression  and  wrong,  and  levy  an 
amount  sufficient  for  its  payment,  he  would  be  guilty  of  will- 
fully and  maliciously  making  an  excessive  levy ;  but  a  mere 
mistake  in  judgment  as  to  the  value  of  the  property  seized, 
or  a  want  of  knowledge  of  the  sum  due,  cannot  render  him 
a  trespasser,  [o) 

The  action  of  replevin  may  be  brought  to  try  the  legality 
of  a  distress  for  rent,  provided  there  is  no  sum  whatever  due 
for  rent;  but  if  any  sum  is  due,  and  the  distress  is  for  a| 
greater    sum,  or    is    excessive    in  regard  to  the  quantity  of 

(w)  44  111.  522. 
(«)  33  111-  452. 
{0)  79  111.  460. 


DISTRESS  FOR  RENT.  409 

Notice  to  non-residents,  etc. 

goods  taken,  or    otherwise  is  irregular,  the  remedy  must  be 
by  an  action  of  case,  {p)    • 

Return  of  Distress  Warrant — Inventory.- — "  The  person  mak- 
ing such  distress  warrant  shall  immediately  file  with  some 
justice  of  the  peace,  if  the  amount  of  the  claim  is  within  his 
jurisdiction,  or  with  the  clerk  of  a  court  of  record  of  compe- 
tent jurisdiction,  a  copy  of  the  distress  warrant,  together  with 
an  inventory  of  the  property  levied  upon."  [q] 

No.    193.     Inventory  to  be  filed  ivith  copy  of  distress  zvarrant. 
State  of   Illinois, 


County  of  '^ 

An  inventory   of  the    several    goods    and    chattels    of   C. 

D.,  distrained    by   me,  on  the day    of  ,  18 — ,  in 

the   county    of ,  where    the    said    C.    D.    resides,    by 

virtue  of  the  warrant  and   authority,  and  in  behalf  of  A.  B., 

the  landlord,  for  the  sum  of  dollars,  being  for 

rent  due  to  the  said  landlord,  on  the day  of ,  18 — , 

for  the  premises  in  the  warrant  mentioned,  to  wit: 
[Here  describe  the  property  distrained.) 

E.  F.,  Sheriff  of 

County. 

Sunnnons  to  issue. — "Upon  the  filing  of  such  copy  of  dis- 
tress warrant  and  inventory,  the  justice  of  the  peace  or  clerk 
shall  issue  a  summons  against  the  party  against  whom  the 
distress  warrant  shall  have  been  issued,  returnable  as  other 
summons,     {f) 

Notice  to  non-residents,  etc. — "  When  it  shall  appear,  by  affi- 
davit filed  in  the  court  where  such  proceeding  is  pending, 
that  the  defendant  is  a  non-resident  or  has  departed  from  this 
State,  or  on  due  inquiry  cannot  be  found,  or  is  concealed 
within  this  State,  and  the  affiant  shall  state  the  place  of  resi- 

(p)  60  Til.  380;  67  111.  244;  see  35  111.  282. 

{q)  Rev.  Stat.  (1874)  659;  Rev    Sla'.  (1877)  628. 

(r)  Rev.  Stat.  (1874)  659;  Rev.  Stat.  (1877)  628. 


4IO  DISTRESS  FOR  RENT.. 

Notice  to  non-residents,  etc. 

dence  of  said  defendant,  if  known,  and  if  not  known,  that  upon 
diligent  inquiry  he  has  not  been  able  to  ascertain  the  same, 
notice  may  be  given,  if  the  suit  is  before  a  justice  of  the  peace, 
as  in  cases  of  attachment  before  justices,  or  if  in  a  court  of 
record,  as  in  attachment  cases  in  such  courts,     {s) 


No.  194.     Affidavit  for  publication  against  no7i-rc side nts,  etc. 

In  the of  the  County  of in  the  State  of 

Illinois. 

A.  B.    I 
vs.      \  Distress  for  Rent. 

C.  D.    j 

A.  B.,  of,  etc.,  on  oath  states,  that  C.  D.  the  above  named 
defendant,  is  a  non  resident,  {or  "  has  departed  from  this  State," 
or  "  on  due  inquiry  cannot  be  found"  or  "  is  concealed  within 
this  State"  as  the  case  may  be),  and  that  the  place  of  resi- 
dence of  the  said  C.  D.  is (or  "  is  not  knoiun,  and 

jipon  diligent  inquiry  affiant  has  not  been  able  to  ascertain    the 
same.") 

Subscribed  and  sworn,  etc.  A.  B. 

Proceedings — Pleadings. — The  statute  provides  that 
"  The  suit  shall  thereafter  proceed  in  the  same  manner  as 
in  case  of  attachment  before  such  coui"t  or  justice  of  the 
peace  :  Provided,  that  it  shall  not  be  necessary  for  the  plain- 
tiff in  any  case  to  file  a  declaration,  but  the  distress  warrant 
shall  stand  for  a  declaration,  and  shall  be  amendable,  as  other 
declarations,  provided,  that  no  such  amendment  shall  in  any 
way  affect  any  liabilities  that  may  have  accrued  in  the  execu- 
tion of  such  warrant."  {t) 

Where  a  plaintiff  files  an  affidavit  of  claim  with  the  distress 
warrant,  the  defendant  is  bound  to  file  with  his  pleas  an  affi- 
davit of  merits,  [u) 

{s)   2  Starr  &  Curtis'  An.  Stat.  1502;  Rev.  Stat.  (1877)  629. 
(/)  lb.;   Rev.   Stat.   (1877)   629;  12    Bradw.  141.     See    10   Bradw,    40;   n 
Bradw.  72;  33  111.  452;  87  111.  219. 
(u)  87  III.  219. 


DISTRESS  FOR  RENT.  411 

Defenses — Set-off,  etc. 

The  statute  provides  that  proceedings  in  distress  shall  be 
the  same  as  in  attachment  cases,  and  the  distress  warrant 
shall  stand  as  a  declaration.  In  attachment  cases,  the  defeat 
of  the  attachment,  where  there  was  personal  appearance,  does 
not  defeat  the  action,  only  the  lien  of  the  attachment,  and  this 
rule  applies  in  distress  for  rent,  to  allow  a  recovery  for  the 
rent  where  there  is  personal  appearance  and  defense  to  the 
merits,  (v) 

A  distress  warrant  is  not  a  Hen  prior  to  executions,  except 
as  to  growing  crops.  («) 

Defenses — Set-off^  etc. — The  statute  provides  that 

"  The  defendant  may  avail  himself  of  any  set-off  or  other 
defense  which  would  have  been  proper  if  the  suit  had  been 
for  the  rent  in  any  form  of  action,  and  with  like  effect."  {w) 

In  a  distress  for  rent,  where  the  defendant  pleads  no  rent 
in  arrears  only,  he  can  not  recover  judgment  for  damages.  To 
authorize  this  he  must  plead  a  set-off  either  specially  or  give 
notice  under  the  general  issue.  The  action  is  for  rent  only, 
and  unless  the  defendant  opens  the  door  to  the  investigation 
of  other  matters,  by  pleading  a  set-off,  the  rent  alone  is  the 
proper  subject-matter  of  the  suit,  and  to  this  the  proof  should 
be  confined.  But  if  the  tenant  pleads  a  set-off,  the  landlord, 
by  way  of  replication,  may  plead  any  matter  of  defense,  such 
as  a  set-off,  the  same  as  if  he  were  sued  as  defendant;  but  the 
landlord,  in  such  case,  can  not  recover  for  any  excess  of  his 
set-off  over  that  of  the  tenant.  The  prayer  of  judgment  in 
such  replication,  should  be  as  claimed  in  the  declaration,  {x) 

The  statute  giving  the  tenant  the  right  to  avail  himself  of 
a  set-off  was  intended  to  apply  only  to  cases  where,  upon  a 
fair  adjustment  of  all  counter  claims  other  than  the  rent,  the 

(w)  12  Bradw.  141.     See  33  111.  452;  68  111.  188;  44  III.  123. 
(a)  19  Bradw.  450;  112  111.  247. 

{w)  2  Starr  &  Curtis'  An.  Stat.  1502;  Rev.  Stat.  (1877)  629.  See  14  111.  75; 
67  111.  244;  69  111.  210. 

{x)  86  111.  560,  564.     See  26  111.  115. 


DISTRESS  FOR  RENT. 


Judgment. 


landlord  will  be  indebted  to  the  tenant,  and  in  such  case  gives 
the  tenant  the  benefit  of  his  claim  on  such  balance,  {j') 

jfiidgment — for  plaintiff. — By  the   statute, 

"If  the  plaintiff  succeeds  in  his  suit,  judgment  shall  be 
given  in  his  favor  for  the  amount  which  shall  be  due  him. 

"  When  the  defendant  has  been  served  with  process,  or  ap- 
pears to  the  action,  the  judgment  shall  have  the  same  force  and 
effect  as  in  suits  commenced  by  summons,  and  execution  may 
issue  thereon,  not  only  against  the  property  distrained,  but 
also  against  the  other  property  of  the  defendant.  But  the 
property  distrained,  if  the  same  has  not  been  replevied  or  re- 
leased from  seizure,  shall  be  first  sold."  (^) 

When  there  has  been  personal  service,or  a  personal  appear- 
ance, a  judgment  rendered  is  final  and  conclusive  between 
the  parties  as  to  all  matters  that  should  have  been  determined 
in  the  proceeding,  the  chief  of  which  is,  whether  rent  was  due, 
and  if  so,  what  amount,  [z) 

Where  there  is  no  perso7ial  service,  etc. — "  Where  publication 
of  notice  shall  have  been  made,  as  provided  by  this  act,  but 
the  defendant  is  not  served  with  process,  and  does  not  appear, 
judgment  by  default  may  be  entered,  and  the  plaintiff  may 
recover  the  amount  due  him  for  rent  at  the  time  of  issuing 
the  distress  warrant,  and  a  special  execution  shall  issue  against 
the  property  distrained,  but  no  execution  shall  issue  against 
any  other  property  of  the  defendant."  {a) 

Judgment  for  defendant.,  etc. — The  statute  provides  that 
"  If  the  judgment  is  in  favor  of  the  'defendant,  he  shall  re- 
cover costs  and  have  judgment  for  the  return  of  the  property 
distrained,  unless   the  same    has  been   replevied  or  released 

{y)  lb.  see  69  111.  210;  69  111.  430;  67  111.  244;  24  111.  280. 
[z)  Rev.  Stat.  (1874)   660;  Rev.  Stat.  (1877)  629;  84  111.  367;  68  111.  1S8; 
I  Hiadwell    App.  Ct.  R.  188. 
(=)  84  1.1.  367. 
{a)  Rev.  Stat.  (1874)  660;   Rev.  Stat.   (1877)  629. 


DISTRESS  FOR  RENT.     '  413 

Perishable  property. 

from  such  distress.  And  if  a  set-off  is  interposed,  and  it  ap- 
pears that  a  balance  is  due  from  the  plaintiff  to  the  defend- 
ant, judgment  shall  be  rendered  for  the  defendant  for  the 
amount  thereof  {b) 

Release  of  property  distrained — Bojid. — "  When  any  distress 
warrant  has  been  levied,  the  person  whose  property  is  dis- 
trained may  release  the  same  by  entering  into -bond  in  double 
the. amount  of  the  rent  claimed,  payable  to  the  landlord,  with 
sufficient  sureties,  to  be  approved  by  the  person  making  the 
levy,  if  the  bond  is  tendered  before  the  filing  of  the  copy  of 
the  warrant,  as  provided  in  this  act,  or  if  after,  by  the  clerk 
of  the  court  in  which,  or  justice  of  the  peace  before  whom, 
the  suit  is  pending,  conditioned  to  pay  whatever  judgment 
the  landlord  may  recover  in  the  suit,  with  costs  of  suit.  If 
the  bond  is  taken  before  the  filing  of  a  copy  of  the  distress 
warrant,  such  bond  shall  be  filed  therewith  ;  and  if  taken  after 
the  filing  of  a  copy  of  the  distress  warrant,  it  shall  be  filed  in 
the  court,  or  with  the  justice,  where  the  suit  is  pending."  {c\ 

Perishable  property. — "  If  any  property  distrained  is  of  a 
perishable  nature,  and  in  danger  of  immediate  waste  or  decay, 
and  the  same  is  not  replevied  or  bonded,  the  landlord  or  his 
agent  or  attorney  may,  upon  giving  notice  to  the  defendant 
or  his  attorney,  if  either  can  be  found  in  the  county;  or  if 
neither  can  be  found,  without  any  notice,  apply  to  the  judge 
or  master  in  chancery  of  the  court  in  which,  or  the  justice  of 
the  peace  before,  whom  the  suit  is  pending,  describing  the 
property,  and  showing  that  the  same  is  so  in  danger,  and  if 
such  judge,  master  or  justice  of  the  peace  is  satisfied  that  the 
property  is  of  a  perishable  nature  and  in  danger  of  immediate 
waste  or  decay,  and  if  the  defendant  or  his  attorney  is  not 
served  with  notice,  or  does  not  appear,  that  he  cannot  be 
found  in  the  county,  he  may  issue  an  order  to  the  person  hav- 

(b)  Rev.  Stat.  (1874)  660;  Rev.  Stat.  (1877)  629. 

{c)  Rev.  Stat.  (1874)  660;  Rev.  Stat.  (1S77)  629;  i  Bradwell  App.  Ct.  R. 
18S. 


414  DISTRESS  FOR  RENT. 

Rights  against  sub-lessees,  etc. 

ing  possession  of  the  property,  directing  the  sale  thereof  upon 
such  time  and  such  notice,  terms  and  conditions  as  the  judge, 
master  or  justice  of  the  peace  shall  think  for  the  best  interest 
of  the  parties  concerned.  The  money  arising  from  such  sale 
shall  be  deposited  with  the  clerk  of  the  court  in  which,  or 
justice  of  the  peace  before  whom,  the  suit  is  pending,  there 
to  abide  the  event  of  the  suit."  {d) 

Rights  against  sub-lessees,  etc. — The  statute  provides  that : 

"  In  all  cases  where  the  demised  premises  shall  be  sub-let, 
or  the  lease  is  assigned,  the  landlord  shall  have  the  same 
right  to  enforce  his  lien  against  the  sub-lessee  or  assignee 
that  he  has  against  the  tenant  to  whom  the  premises  were  de- 
mised." {e) 

There  can  be  no  distress,  unless  there  has  been  an  actuul 
demise,  at  a  certain  fixed  rent;  and  unless  it  be  for  rent 
due.   (/) 

A  purchaser  at  a  foreclosure  sale  can  not  distrain  for  rent, 
unless  the  tenant  has  attorned  to  him.  [g)  A  person  not 
occupying  the  position  of  lessor,  grantee  or  assignee,  or  heir, 
cannot  maintain  a  distress,   {h) 

((/}  2  Stan-  &  Curtis'  An.  Stat.  1505;  Rev.  Stat.  (1877)  629. 
{c)  lb.;   Rev.  Stat.  (1S77)  630. 
(/)  4  Bi-advv.  575. 
[g)  9  Bradw.  267. 

(A)  10  Bradw.  40 ;  Taylor's  Landlord  and  Tenant,  sections  561-4.  See  24 
111.  278;  16  Johns.  289;  84  111.  179. 


CASE.  415 

Where  the  action  lies,  etc. 


CHAPTER  VIII. 


CASE. 


By  the  21st  section  of  the  Illinois  Practice  Act,  it  Is  enacted, 
that  "  the  distinctions  between  the  actions  of  trespass  and  tres- 
pass on  the  case  are  hereby  abolished ;  and  in  all  cases  where 
trespass  or  trespass  on  the  case  liave  been  heretofore  the 
appropriate  form  of  action,  either  of  said  forms  may  be  used, 
as  the  party  bringing  the  action  may  elect."  {a) 

This  section  allows  counts  in  trespass  and  counts  in  case  to 
be  joined  in  one  declaration,  and  the  action  to  be  called,  either 
trespass  or  case,  but  each  count  must  state  a  complete  cause 
of  action  either  in  trespass  or  case;  and  the  evidence  must 
correspond  with  the  pleadings,  {b) 

Trespass  on  the  case  is  the  form  of  action  usually  resorted 
to  for  the  redress  of  wrongs  done  to  a  man's  person,  reputa- 
tion, goods  or  estate,  without  direct  force.  It  lies  for  negli- 
gence or  nonfeasance,  that  is,  the  omission  of  what  one  is 
bound  by  law  to  perform ;  misfeasance,  that  is,  an  improper 
performance  of  what  one  has  a  right  to  do  in  a  proper  man- 
ner, or  what  one  has  undertaken,  or  is  bound  by  law  to  per- 
form ;  or  malfeasance,  that  is,  doing  what  is  illegal,  or  what 
one  has  no  right  to  do  ;  whereby  a  consequential  injury  results 
to  another. 

An  action  on  the  case  for  negligence  will  lie  against  a  muni- 

(a)  2  Starr  &  Curtis  An,  Stat.  1787;  77  111.  603;  80  111.  205. 

(b)  17  Bradw.  417;  76  111.  224;  3Bradw.  155,  160. 


4i6  CASE. 

Where  the  action  lies,  etc. 

cipal  corporation,  from  damages  arising  from  a  breach  of  duty 
imposed  by  law.  {d) 

It  is  a  familiar  principle,  that  where  a  person  exercises  or 
enjoys  a  peculiar  privilege,  productive  of  benefit  to  him 
alone,  the  law  requires  that  he  shall  exercise  extraordinary 
care  to  so  use  or  enjoy  such  special  privilege  that  no  injury 
shall  result  through  such  use  or  enjoyment  to  other  per- 
sons, [e) 

An  action  on  the  case  will  lie  against  one  erecting  a  nui- 
sance, or  one  continuing  a  nuisance  erected  by  another.  (/) 

Case  lies  where  the  plaintiff  has  been  aggrieved  and  dam- 
nified by  the  commission  of  unlawful  acts  by  the  defendants, 
in  pursuance  of  a  combination  or  conspiracy  for  that  pur- 
pose, {g) 

This  action  lies  also  against  one  who  knowingly  sells  un- 
wholesome meat;  {h)  and  against  a  public  officer,  for  refusing 
the  plaintiff's  vote  at  a  town  meeting  ;  (?)  and  for  withdraw- 
ing a  deed  from  a  public  office,  where  it  had  been  left 
for  record,  whereby  the  plaintiff's  title  was  subjected  to  em- 
barrassment, (y) 

An  officer  who  negligently  permits  the  escape  of  a  pris- 
oner, is  liable  to  any  person  injured  by  such  neglect  of 
ofilcial  duty,  {k)  A  constable,  having  the  custody  of  a 
person  on  a  bastardy  warrant,  is  liable  to  the  mother  of  the 
illegitimate  child,  for  negligently  suffering  such  prisoner  to 
escape,  (/) 

Case  lies  against  a  magistrate  for  a  corrupt  refusal   to  al- 

[a)  25  111.  535;  35  111,58;  42  III.  503;  49  111.  476;  44  III.  295;  48  111.  499; 

SZ  111-  91  >  407;  52  111-  190- 

(<?)   12  111.  20.     See  45  111.  455  ;  46  111.  494;  49  111.  234,  476. 

(/)   10  Mass.  72.     S«e  28  111.  73;  39  111.  599;  65  111.  484;  68  111.  478. 

{g)  6  Watts,  306;   I  Bin.  172;  8  Serg.  &  Rawle,  522;  i  Head,  336. 

{h)   II  Pick.  484, 

(?)  7  Greenl.  411.     See  44  111.  194. 

( ;• )  8  Conn.  352. 

[k)   I  Wend.  115  ;  37  111.  257. 

(/)   37  111.  257. 


CASE.  417 

Where  the  action  lies,  etc. 

low  an  appeal  from  his  decision.  (7;/)  If  a  justice  of  the  peace 
acts  corruptly,  he  can  be  made  to  answer  criminally  and 
civilly,  (ft) 

Case  may  be  maintained  against  a  sheriff,  for  taking  an 
insufficient  bond  in  replevin  ;  (0)  or  for  not  returning  an  exe- 
cution, though  the  plaintiff  may  proceed  by  attachment.  {/>) 
And  case  lies  also  against  a  person  who  has  neglected  to 
attend  and  give  evidence  in  a  cause,  after  service  of  sud- 
pcena.  [q) 

Case  lies  for  an  infringement  of  a  copyright,  (r) 

It  lies  for  not  repairing  fences,  whereby  cattle  got  into  the 
plaintiff's  field,  {s) 

Where  goods  are  deposited  with  a  party,  to  be  sold  at 
not  less  than  a  certain  fixed  price,  and  the  depository  sells 
them  at  a  less  price,  case,  not  trover,  is  the  proper  rem- 
edy. (/) 

An  action  on  the  case  may  be  sustained  against  an  inn- 
keeper, for  goods  lost  or  stolen  out  of  his  inn,  without  prov- 
ing negligence.  {21) 

Case  lies  by  a  husband  against  his  wife's  father,  for  enticing 
her  away.  {%>) 

Ministerial  officers  may  be  sued  in  case,  for  any  breach  of 
duty,  whether  intentional,  or  malicious,  or  not.  {w) 

An  action  on  the  case  may  be  brought  in  the  name  of  the 
principal,  for  a  false  representation  made  to  the  agent,  {x) 

{m)  8  Wend.  462. 

(w)    22  111.    100. 

(o)vRev.  Stat.  (1877)  810;  89  111.  159;  85  111.  248. 
(/)   15  Johns.  74. 

(q)  Doug.  556;   13  East.  17,  n. ;  2  Chit.  V\.  757. 
(r)  II  East.  244;   I  Camp.  94. 
{s)   I  Salk.  335  ;  31  Vermont,  540. 
(/)   16  Johns.  74. 

(«)   14  Johns.  175;  94  111.  349;  95  111.  519. 
{v)  5  Johns.  196. 

(w)   24  Pick.  292;   23  rick,  224,  308;    19  Vermont,  55I;  II  Met.  339. 
{x)  12  Wend.  176;  80  111.  35. 
27 


41 8  CASE. 

Where  the  action  lies,  etc. 


Case  will  lie  for  the  assertion  of  a  falsehood,  with  a 
fraudulent  intent,  as  to  an  existing  fact,  where  a  direct,  posi- 
tive and  material  injury  results  from  such  assertion,  (j) 
And  it  will  lie  for  a  deceit,  as  where  a  person  is  induced  to 
purchase  land  by  a  false  representation  that  a  certain  privi- 
lege is  annexed  to  the  land,  but  which  is  not  included  in  the 
deed,  [a) 

If  a  person  falsely  represents  himself  as  the  agent  of 
another,  and  authorized  to  receive  certain  money,  and  thereby 
obtains  the  money,  he  may  be  reached  by  a  special  action  on 
the  case  for  fraud,  (d) 

Fraud  or  deceit,  wherefrom  damage  results,  is  a  good  cause 
of  action,  (c)  Where  a  person  makes  a  false  representation 
to  another,  with  a  design  to  deceive  and  defraud  him,  and  the 
latter  enters  into  a  contract  with  a  third  person,. relying  upon 
the  representations,  and  sustains  an  injury  thereby,  an  action 
on  the  case,  in  the  nature  of  deceit,  will  lie  at  the  suit  of  the 
person  injured  against  the  person  making  the  fraudulent  rep- 
resentations, although  he  was  not  a  party  to  the  contract  by 
which  the  plaintiff  was  injured,  (d) 

In  an  action  for  deceit  in  the  sale  of  a  horse,  what  the  con- 
sideration to  be  paid  was,  or  whether  it  was  paid  down  or  not, 
is  not  material,  (c) 

Where  one  person  owns  the  ground  rooms  in  a  building, 
and  another  the  upper  stories,  the  latter  has  a  right  to  have 
his  portion  of  the  tenement  supported  by  the  division  wall 
in  the  lower  part;  and  the  removal  of  such  support  by  the 
owner  of  the  lower  part  of  the  building  is  such  an  infringe- 
ment of  that  right  as  will  sustain  an  action  on  the  case  against 
the  wrong  doer.  (/") 

( r)  2  Wend.  384;  6  Cowen,  346;  37  111.  260. 
(a)   13  Johns.  395.     See  28  111.  280. 
(d)  32  111.  532. 

(c)  6  Johns.  181  ;   13  Johns.  224;  32  111.  532;  37  111.  260. 

(d)  3  Scam.  173.     See  18  111.  290;  37  111.  260. 

(e)  28  111.  280. 
(/)  33  111-  175. 


CASE.  419 

Where  the  action  lies,  etc. 

Where  a  person  borrows  a  horse  of  another,  for  use,  with- 
out compensation,  he  becomes  a  gratuitous  bailee,  and  is  lia- 
ble for  any  injury  to  the  horse  while  in  his  custody,  unless  he 
has  exercised  extraordinary  care,  (g) 

An  action  on  the  case  for  seduction  may  be  sustained,  not 
only  by  a  parent,  but  by  a  guardian,  master,  brother-in  law, 
or  other  person  standing  in  loco  parentis  to  the  person 
seduced.  {Ji) 

A  party  is  liable  in  an  action  on  the  case  for  damage  done 
to  the  property  of  another  by  setting  fire  to  a  prairie,  {i) 

Case  lies  for  criminal  conversation  with  the  plaintiff's  wife, 
(7)  or  he  may  sue  in  trespass,  at  his  election,  [k) 

An  action  on  the  case  will  not  lie  for  improperly  causing 
a  writ  of  injunctiton  to  be  issued.  The  remedy  is  on-  the 
injunction-bond.  (/) 

In  an  action  on  the  case  for  malicious  prosecution,  want 
of  probable  cause  must  be  shown.  The  existence  of  malice 
is  not  sufficient  to  raise  a  presumption  of  a  want  of  probable 
cause,  {ill)  though  a  want  of  probable  cause  may  raise  a 
presumption  of  malice.  In  order  to  sustain  such  action, 
there  must  be  proof  both  of  malice  and  of  a  want  of  proba- 
ble cause.  {ii)  What  is  such  probable  cause  as  will  justify 
the  prosecution  of  a  person  for  a  criminal  offense,  is  a  ques- 
tion of  law.  An  honest  belief  that  the  accused  is  guilty, 
founded  on  circumstances  which  tend  to  show  that  he  has 
committed  a  criminal  offense,  negatives  the  idea  of  a  want  of 
probable  cause  for  the  prosecution.  (<?) 

An  action  on  the  case  for  malicious  prosecution  can  not 

{g)  37  111.  250. 

(//)  21  111.  161.     See  3  Gilm.  583. 

(?)  2  Scam.  334. 

(>)  7  Blackf.  578. 

{k)  41  111.9;  I  Chit.  PI.  128. 

(/)  27  111.  489. 

(w)  23  \\\.  425. 

(«)  I  Scam.  274;  13  111.  701  ;  23  111.  425;  i  Wend.  140 ;  13  La  An.  214; 
8  Cal.  217  ;  70  111.  408  ;   69  111.  376 ;   72  111.  262  ;   81  111.  478. 

{0)  13  111.  701 ;  33  Penn.  St.  501  ;  4  E.  D.  Smith  (N.  Y.),  9;  8  Cal.  217; 
77  111.  32;  70  111.  544;  83  111.  291. 


420 


CASE. 


Where  the  action  lies,  etc. 


be  brought  before  the  former  suit  l)as  been  legally  deter- 
mined, and  it  must  be  averred  that  the  former  suit  terminated 
in  the  present  plaintiff's  favor,   [p) 

Causing  water  to  flow  back  upon  the  land  of  another  is 
such  an  act  as  entitles  the  person  injured  to  his  action.  Al- 
though the  act  may  be  in  itself  lawful,  yet,  if  in  its  conse- 
quences it  necessarily  damages  the  property  of  another,  the 
person  occasioning  the  damage  may  be  compelled  to  make 
reparation  commensurate  with  the  injury  he  has  caused,  {q) 

One  can  not  recover  for  any  injury,  even  from  the  gross 
negligence  of  another,  unless  he  is  free  from  culpaple  negli- 
gence on  his  own  part,   {r) 

If  the  negligence  of  both  parties  is  equal,  the  plaintiff  can 
not  recover,  {s)  Although  the  plaintiff  may  have  been 
guilty  of  some  degree  of  negligence,  yet  if  it  was  but  slight 
as  compared  with  that  of  the  defendant,  the  plaintiff  can  re- 
cover; and  this  rule  holds  even  where  the  slight  negligence 
of  the  plaintiff  in  some  degree  contributed  to  the  injury.  (/) 

If  a  person  negligently  allows  his  cattle  to  run  in  a  high- 
way near  a  railway  crossing,  he  cannot  recover  for  injuries 
caused  to  such  cattle  by  a  train  on  such  railway,  although  the 
servants  of  the  railway  company  may  also  have  been  guilty 
of  negligence,   [n) 

It  is  negligence  for  a  deaf  person  to  drive  an  unmanage- 
able horse  across  a  railroad  track  when  a  train  is  approach- 
ing. It  is  his  duty  to  keep  a  lookout,  and  avoid  the  danger  ; 
and  it  is  no   excuse-  that  the    horse    rushed    upon  the  track 


(/)  X  Scam.  30;  2  Chit.  PI.  610,  n. 

[q]   2  Scam.  67;  41  111.  502;  49  111.  484.  See  50  III.  325;  40  111.  349. 
(r)  98  111.  4S1  ;  96  111.  42;  93  111.  290;  95  111.  25;  91  111.  35;  .110  111.  114, 
294;  118  111.  41,  174,  572;  119  111.  51,  232,  399;  107  111.  512;  105  lil.  554,  37 

111.  338.  -   ' 

{s)   42  111.  288;  47  111.  497,  514;  49  111.  499.  See  43  111.  64;  45  III.  469; 

46  111.  74;  53  111.  115;  52  111.  452;  51  IH-  495;  55  111-  379- 

{t)   38  111.  370,  482  ;  49  111.  499  ;  46  111.  74;  36  111.  409;  54  111.  528  ;  51  IH 

333;  55  111-  380.  See  38  111.  242  ;  42  111.  288 ;  47  111.  408.  514. 
(«)  28  111.  513.  See  54  111.  528. 


CASE.  421 

Commencement  of  the  action. 

near  a  crossing,  or  was  driven  there,  to  avoid  the  en- 
gine, {v) 

It  is  said  that  it  would  be  negligence  in  a  railroad  com- 
pany to  permit  vegetation  to  grow  along  its  road,  to  such  a 
height  and  density  as  to  conceal  from  view  cattle  which 
might  be  upon  it.  (w)  And  though  it  is  not  negligence  per 
se,  in  such  company,  to  permit  dry  grass  and  weeds  to  ac- 
cumulate and  remain  along  its  road,  in  such  quantity  as  to 
increase  the  danger  of  fire  from  sparks  or  brands  escaping 
from  engines,  yet  the  jury  may  find  negligence  from  such 
fact;  but  a  railroad  company  is  held  to  no  higher  degree 
of  care  in  this  respect  than  are  the  persons  occupying  the 
land  adjoining  the  road,   (.v) 

Railroad  companies  should,  in  the  exercises  of  their  func- 
tions, adopt  such  precautions  as  will  prevent  damage  to  the 
property  of  persons  by  the  escaping  of  fire  from  locomo- 
tives ;  and  they  may  be  guilty  of  negligence,  and  answer- 
able therefor,  if  injury  ensues  from  fire  so  escaping,  (j) 

When  the  death  of  a  person  is  occasioned  by  the  wrong- 
ful act,  default  or  negligence  of  another,  and  the  act  or 
neglect  is  such  as  would  have  entitled  the  former  to  main- 
tain an  action,  if  death  had  not  ensued,  the  wrong  doer  is 
liable  for  damages,  in  an  action  to  be  brought  in  the  name 
of  the  personal  representatives  of  the  deceased.  Suit  must 
be  brought  within  two  years.  {2) 

COMMENCEMENT  OF  THE  ACTION. 

The  action  is  commenced  by  suing  out  a  summons,  or  a 
capias  ad  respondendum;  and  if  the  plaintiff  is  a  non-resi- 
dent, security  for  costs  must  be  filed,  {a)  The  prcecipe  may 
be  as  follows : 

{v)  28  111.  299. 

(«;)  28  111.  9;  53  111.  447. 

{x)  47  111.  497/505;  54  111-  504;  42  111.  407;  53  111-  447;  51  111-  78. 

(;')  Cases  last  cited;  28  111.  9;  23  N.  Y.  (9  Smith,)  158,  465;  40  Penn.  St. 
95;  31  Miss.  574. 

{z)  Rev.  Stat.  (1877)  558;  26  111.  400;  18  111.  349;  54  111.  133;  So  111.  8S ; 
77  III.  109-391 ;  76  111.  25,  278,  395;  75  111.  93,  46S. 

{a)  Ante,  39-43, 


422  CASE. 

Precipe — Declarations  in  case. 

Precipe yi?r  summons  or  capias  in  case. 

In  the Court  of  the  County  of ,  in  the  slate 

of  Illinois. 

A.  B.  "I 

vs.       y  Case.         Damages  $ , 

C.  D.J 

The  clerk  of  the  said  court  will  issue  a  summons,  {or 
"capias    ad    respondendum','^    as     above,     directed     to     the 

sheriff  of  the  county  of, and  returnable  to  the 

term,  18 — . 

{Date.) 


To  L.  M.,  Clerk,  etc. 


E.  F.,  Attorney  for  plaintiff. 


DECLARATIONS  IN  CASE. 

For  the  particular  mode  of  framing  declarations  in  this 
action,  the  pleader  is  referred  to  the  precedents  here  given, 
and  the  observations  thereunder.  As  a  general  rule,  it  may 
be  laid  down  that  the  declaration  should  set  forth,  by  way 
of  inducement,  the  circumstances  under  which  the  injury 
was  committed,  and  should  then  set  forth  the  injury,  and 
the  consequential  damages  resulting  therefrom  to  the 
plaintiff,  {b) 

Counts  in  trover  may  be  joined  with  counts  in  case,  {c) 
see  trespass  and  case  may  also  be  joined,  {d) 

No.  197.  Against  a  railroad  company,  for  negligently 
running  train  across  highway^  whereby  plaintiff  was 
injured,  etc. 

In  the Court. 

Term,  18 — . 

State  of  Illinois, 


County  of , /set.     A.    B.,  plaintiff,    by    E.    F.,    his 

attorney,    complains    of   the Railroad    Company,    de- 

{b)  I  Chit.  PI.  327. 

\c)  I  Chit.  PL  181.     See  i  Gilm.  46;  27  111.  479. 

\d)  77  111.  603 ;  80  III.  205. 


CASE.  423 

Declaration  against  R.  R,  Co.  for  injury  to  person. 

fendant,  of  a  plea  of  a  trespass  on  the  case  :  For  that  where- 
as the  plaintiff,  on,  etc.,  in,  etc.,  was  riding  in  a  certain  car- 
riage, then  and  there  drawn  by  a  certain  horse,  upon  and 
along    a    certain    public    highway    there,   (to    wit,  a    certain 

public    highway  leading  from    to    ,)  at    a    certain 

crossing   of  the  said  public  highway  and  a  certain  railroad 

of  the   defendant,  in  the   county  of  aforesaid;  and  the 

defendant  was  then  and  there  possessed  of  a  certain  locomo- 
tive engine,  with  a  certain  train  of  cars  then  attached  thereto, 
which  said  locomotive  engine  and  train  were  then  and  there 
under  the  care  and  management  of  divers  then  servants  of 
the  defendant,  who  were  then  and  there  driving  the  same 
upon  and  along  the  said  railroad,  near  and  towards  the 
crossing  aforesaid :  And  while  the  plaintiff  witJi  all  due 
care  and  diligence,  was  then  and  there  riding  in  the  said 
carriage  across  the  said  railroad,  at  the  said  crossing,  upon 
the  said  public  highway  there,  the  defendant  then  and 
there,  by  it  said  servants,  so  carelessly  and  improperly 
drove  and  managed  the  said  locomotive  engine  and  train, 
that  by  and  through  the  negligence  and  improper  conduct 
of  the  defendant,  by  its  said  servants,  in  that  behalf,  the 
said  locomotive  engine  and  train  then  and  there  ran  and 
struck  with  great  force  and  violence  upon  and  against  the 
said  carriage,  (*)  and  thereby  the  plaintiff  was  then  and 
there  thrown  with  great  force  and  violence  from  and  out  of 
the  said  carriage  to  and  upon  the  ground  there,  and  was 
thereby  then  and  there  greatly  bruised,  hurt  and  wounded, 
and  divers  bones  of  his  body  were  then  and  there  broken, 
and  he  became  and  was  sick,  sore,  lame  and  disordered, 
and  so  remained  for  a  long  space  of  time,  to  wit,  hitherto, 
during  all  which  time  he,  the  plaintiff,  suffered  great  pain, 
and  was  hindered  and  prevented  from  attending  to  and  trans- 
acting his  affairs  and  business;  and  by  means  of  the  premises 
the  plaintiff  was  forced  to  and  did  then  and  there  lay  out 

divers  sums  of  money,  amounting  to  dollars,  in  and 

about  endeavoring  to  be  cured  of  his  said  wounds,  hurts 
and  bruises,  occasioned  as  aforesaid ;  and  also  by  the  run- 
ning and  striking  of  the  said  train  upon  and  against  the 
said  carriage  as  aforesaid,  at  the  time  and  place  in  that  be- 
half aforesaid,  the   said  carriage,  then   of  the  value  of 

dollars,  and  whereof  the  plaintiff  was  then  and  there  law- 
fully possessed,  was  crushed   and   destroyed,  and   then  and 


424  CASE. 

Against  R.  R.  Co.  for  negligence,  etc. — Observations,-  etc. 

there  became  and  was  rendered  of  no  use  or  value  to  the 
plaintiff. 

[A  count  on  the  statute,  {e)  for  not  ringing  a  bell.,  etc.,  may  be 
added,  if  deemed  expedient, — see  next  form — co/icluding  the  dec- 
laration asfolloivs  .•) 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sus- 
tained damage  to  the  amount  of  dollars,  and  therefore 

he  brings  his  suit,  etc. 

The  words  in  italics,  in  the  above  form,  would  seem  to  be 
unnecessary.  In  HazzanVs  case,  26  111.  373,  the  court  says 
that  "  his  (theplcwntiff's)  exercise  of  proper  care,  as  well  as  the 
negligence  of  the  defendant,  should  be  alleged  in  the  declara- 
tion;" but  in  Simmons'  case,  38  111.  242,  this  is  said  to  have 
been  dictum  merely ;  and  the  precedents  given  in  the  books 
do  not  contain  any  such  allegation. 

A  railroad  company  and  a  traveler  on  the  highway  have 
correlative  rights,  and  each  must  use  proper  caution  where 
there  is  a  danger  of  a  conflict ;  neither  has  a  superior  right, 
except  as  it  results  from  the  difficulties  and  necessities  of  the 
case.  (/) 

Whether  there  was  negligence  or  want  of  care  in  whatever 
degree,  in  either  of  the  parties,  is  a  question  of  fact,  to  be  de- 
termined by  the  jury;  and  whether  the  circumstances  attend- 
ing the  transaction  constitute  such  negligence  or  want  of 
care,  will  not,  though  admitted,  be  decided  by  the  court  as 
a  matter  of  law,  but  will  be  left  to  the  jury,  as  evidence 
for  them  to  pass  upon.  This  is  especially  true  where  the 
circumstances  in  question  are  but  part  of  the  evidence  in  the 
case.  (^) 

In  an  action  for  an  injury  to  the  plaintiff,  resulting  from 
the  negligence  of  the  defendant,  the  care  required  of  the 
plaintiff  is  that  degree  of  care  which  may  reasonably  be 
expected  from  one  in  his  situation,  that  is,  reasonable  care ; 

{e)  Rev.  Stat.  (1877)  771.     See  i  Gilm.  46.     See  also  form  No.  171. 
(/)  22  111.  265;  22  Texas,  55;  27  Barb.  (N.  Y.)  221.     See  33  111.  304. 
\g)  19  Conn.  566;  2  American   R.   R.  Cases,  114;  31    Barb.   (N.  Y.)  385. 
See  52  111.  290  J  55  111.  380. 


i 


CASE.  425 

Against  R.  R.  Co.  for  negligence,  etc. — Observations,  etc. 

and  if  thisdegree  of  care  be  exercised  by  him,  the  want  of  a 
less  degree  will  not  preclude  him  from  a  recovery  for  the 
negligence  of  ihe  defendant.  And  what  will  be  deemed  rea- 
sonable care  in  any  case  will  depend  on  the  peculiar  circum- 
stances of  the  particular  case.  {Ii)  Although  the  plaintiff 
may  be  chargeable  with  some  degree  of  negligence,  yet  if 
it  is  but  slight  as  compared  with  that  of  the  defendant,  the 
plamtiff  can  recover ;  and  this  rule  holds  even  where  the 
slight  negligence  of  the  plaintiff  in  some  degree  contributed 
to  the  injury,  {i) 

There  is  no  distinction  between  railroads  and  ordinary 
highways  in  regard  to  the  degree  of  care  which  the  law  re- 
quires on  the  part  of  those  who  have  the  direction  or  man- 
agement of  vehicles  upon  them.   (7) 

A  railroad  company  is  responsible  for  an  injury  occasioned 
by  want  of  proper  care  and  prudence  on  the  part  of  its 
servants  in  the  management  of  a  train  which  is  under  their 
exclusive  care,  direction  and  control,  although  the  train 
belongs  to  another  company.  It  has  been  held  in  Massa- 
chusetts that  if  such  injury  results  from  the  negligence  of 
another  railroad  company  which  has  a  joint  right  with  the 
defendant  to  use  the  defendant's  track,  under  a  lease  from 
the  defendant,  and  which  is  accordingly  running  trains  over 
the  defendant's  road  on  its  own  account,  the  defendant  is  not 
responsible,  (k)  In  Illinois  it  is  held,  that  a  railroad  com- 
pany cannot  release  itself  from  liability  by  leasing  its  road 
to  other  parties  ;  and  that  contractors  for  the  construction 
of  a  railroad   are  the   servants  of  the  company,  and  for  their 

[h)  19  Conn.  566;  2  Amer.  R.  R.  Cas.  114;  4  Bing.  628;  15  Eng.  Com  L. 
R.91;  I  Adol.  &  Ellis,  N.  S.  30 ;  26  111.  373  ;  16  111.  558  ;  11  East,  60;  19 
N.  Y.  (5  Smith,)  341  ;  37  111.  338. 

(0  37  111.  338;  38  111.  370,  482;  49  Til.  499;  46  111.  74;  36  111.  409;  54  III. 
528;  51  111.333;  55111-379;  87  III.  529- 

(/)   19  Conn.  566;  2  Amer.  R.  R.  Cas.  114. 

{k)  I  Allen,  9. 


426  CASE. 

Against  R.  R.  Co.  for  negligence,  etc. — Observations,  etc. 

tortious  acts,  while  about  the  company's  business,  the  com- 
pany is  liable.  (/) 

It  is  negligence  for  a  deaf  person  to  drive  an  unmanageable 
horse  across  a  railroad  track  when  a  train  is  approaching.  It 
is  his  duty  to  keep  a  lookout  and  avoid  the  danger ;  and  it  is 
no  excuse  that  the  horse  rushed  upon  the  track  near  the  cross- 
ing, or  was  driven  there  to  avoid  the  engine,  (w)  But  the 
fact  that  a  person  who  was  killed  by  a  railroad  train,  at  a 
crossing,  was  partially  deaf,  will  not  excuse  the  company  for 
not  having  sounded  the  whistle,  or  rung  the  bell,  from  the 
point  required  by  the  statute.  {71) 

Persons  crossing  a  railroad  track  are  bound  to  know  that 
such  an  undertaking  is  dangerous,  and  they  must  take  all 
proper  precautions  to  avoid  accidents  in  so  doing,  or  they  can 
not  recover  for  injuries  received.  {0)'  Where  a  drunken  man 
was  driving  towards  a  railroad,  while  a  train  was  coming,  in 
full  view,  and,  notwithstanding  the  shouting  of  persons  within 
hearing  distance,  he  attempted  to  cross  the  track,  and  was 
injured,  it  was  held  that  he  could  not  recover  for  injuries 
received.  (/) 

The  proprietors  of  railroads,  when  running  their  engines 
over  crossings,  are  bound  to  exert  reasonable  care  and  dili- 
gence, to  prevent  injury  therefrom  to  travelers  on  the  road 
crossed ;  and  whether  such  care  and  diligence  have  been  em- 
ployed in  a  particular  case,  is  a  question  of  fact  to  be  decided 
by  the  jury,  upon  all  the  circumstances.  (^) 

A  compliance  with  the  provisions  of  a  statute  respecting 
the  putting  up  of  notices  at  railroad  crossings,  and  the 
ringing  of  a  bell  when  engines  are  passing  over  the  same, 
will  not  exempt  the  proprietors  of  a  railroad   from  their  ob- 

(/)  22  111.  106;  20  III.  385,  623.  See  15  111.  72;  14  111.  85  ;  39  111.  272;  40 
111.   143. 

(w)  28  111.  299;  8  Ohio,  570;  72  111.  567  ;  70  111.  lo?. 

(n)  38  111.  482.     See  40  111,  218;  80  111.  86;  107  111.  199,  644. 

(0)  46  111.  74;  53  111-  "5  ;  52  111.  325-     See  43  HI-  64;  55  HI-  380. 

(/)  47  111.  514.  See  8  Wright,  175  ;  13  Wiight,  60;  2  P.  E.  Smith,  255  ; 
20  Eng.  L.  &  E.  267;  18  N.  Y.  422  ;  25  Barb.  (N.  Y.)  600;  47  111.  408. 

(jr)  loi  111.  93 ;    107  111.  44. 


CASE.  427 

Declaration  against  R.  R.  Co,  for  injury  to  person. 

ligation  to  use  reasonable  care  and  diligence  in  other  re- 
spects, when  running  their  engines  over  crossings,  if  the  cir- 
cumstances of  the  case  render  the  use  of  other  precautions 
reasonable,   (r) 

An  omission  to  ring  a  bell  or  sound  a  whistle  at  a  cross- 
ing of  a  public  road,  as  required  by  the  statute,  is  negligence 
prima  facie  on  the  part  of  a  railroad  company,  is) 

For  a  case  where  suit  was  brought  against  a  railroad  com- 
pany for  injuries  received  by  the  plaintiff  from  the  explosion 
of  the  boiler  of  one  of  the  company's  engines — such  explosion 
being  held  evidence  prima  facie  of  negligence — see  49  111.  234, 
and  55  111.  194. 

In  what  county  suit  may  he  brought. — By  the  statute  of 
Illinois,  "actions  against  a  railroad  company  may  be  brought 
in  the  county  where  its  principal  office  is  located,  or  in  the 
county  where  the  cause  of  action  accrued,  and  into  or  through 
which  its  road  may  run."   {f) 

No.  198.  On  the  statute,  {u)  against  railroad  company,  for 
not  ringing  bell,  etc.,  at  crossing,  tvhereby  plaintiff  was 
injured,  etc. 

{Commence  as  in  last  precedent^  For  that  whereas  the 
defendant,  on,  etc.,  in,  etc.,  was  the  owner  of  and  used 
and  operated  a  certain  railroad  extending  through  a  part 
of  the  county  aforesaid,  which  said  railroad  then  crossed  a 
certain  public  highway  there,  to  wit  {liere  describe  the  high- 
way, by  name,  location  or  tej'mini^  at  a  certain  place  in 
the  said  public  highway,  (Jiere  describe  the  place,  as  7iearly 
as  may  be) ;  and  so  being  the  owner  of  and  using  and  op- 
erating the  said  railroad  as  aforesaid,  the  defendant  then 
and  there  drove  a  certain  locomotive  engine  upon  and  along 
the  said  railroad,  up  to,  upon  and  across  the  said  public  high- 
way, at  the  said  crossing  of  the  same  and  the  said  railroad; 
and  in  so  doing  no  bell  of  at  least  thirty  pounds'  weight,  or 

(r)  2  Cush.  (Mass.)  539;  i  Am.  R.  W.  Cas.  457;  37  Barb;  221  ;    55  111.  379. 

(j)  50  111.  151. 

{t)  2  Starr  &  Curtis'  An.  Stat.  1773 ;  Rev.  Stat.  (1877)  734.  See  33  111.  290  ; 
77  111.  354. 

(m)  2  Starr  &  Curtis'  An.  Stat.  1935;  Rev.  Stat.  (1S77)  771;  81  111.  450 ;  83 
111.  529. 


423  CASE. 

Declaration  against  R.  R.  Co.  for  injury  to  person. 

steam  whistle,  placed  on  the  said  locomotive  engine,  was  rung 
or  whistled  by  the  engineer  or  fireman  thereof,  at  the  distance 
of  at  least  eighty  rods  from  the  said  crossing,  and  kept 
ringing  or  whistling  until  the  said  crossing  was  reached  by 
the  said  locomotive  engine,  but  therein  the  defendant  wholly 
failed,  and  made  default,  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided  :  By  means  and  in  con- 
sequence of  which  default  and  neglect  of  the  defendant, 
as  aforesaid,  the  said  locomotive  engine  then  and  there  ran 
and  struck  with  great  force  and  violence  upon  and  against 
a  certain  carriage,  then  and  there  drawn  by  a  certain  horse, 
in  which  said  carriage  the  plaintiff  was  then  zvitli  all  due 
care  and  diligence  riding  upon  the  said  public  highway,  at 
the  said  crossing  ;  {^proceed  in  the  same  maimer  as  iii  the  last 
precedent,  from  the  asterisk)) 

No.  199.  Against  a  railroad  company,  for  negligence  in 
■management  of  train  zvherehy  plaintiff,  a  passenger,  was 
injured. 

{Commence  as  in  No.  197,  ante.)  For  that  whereas  the 
defendant,  on,  etc.,  in,  etc.,  was  possessed  of  and  using 
and  operating  a  certain  railroad  extending  through  and 
from,  etc.,  to,  etc.,  in  the  county  aforesaid,  with  certain 
trains  of  cars  running  thereon  for  the  conveyance  of  goods 
and  passengers,  for  reward ;  and  the  plaintiff,  at,  etc., 
aforesaid,  then  became  a  passenger  in  a  certain  train  of  the 
defendant,  on  the  said  railroad,  to  be  carried,  and  was 
thereupon  accordingly  then  carried,  in  the  said  train,  from 
thence  to,  etc.,  aforesaid,  for  certain  reward  to  the  defend- 
ant in  that  behalf:  And  thereupon  it  then  became  and  was 
the  duty  of  the  defendant,  upon  the  arrival  of  the  said  train 
at,  etc.,  aforesaid,  to  give  the  plaintiff  an  opportunity  of  safely 
alighting  therefrom,  and  then  and  there  to  stop  the  said 
train  a  reasonable  time  to  enable  the  plaintiff  so  to  alight 
therefrom  safely  as  aforesaid ;  yet  the  defendant  did  not  re- 
gard its  duty,  or  use  due  care,  in  that  behalf,  but  on  the  con- 
trary thereof,  upon  the  arrival  of  the  said  train  at,  etc., 
aforesaid,  on  the  day  aforesaid,  and  while  the  plaintiff,  with 
all  due  care  and  diligence,  was  then  and  there  about  to 
alight  therefrom,  the  defendant  carelessly  and  negligently 
caused  the  said  train  to  be  suddenly  and  violently  started 
and  moved,  and  thereby  the  plaintiff  was  then   and  there 


CASE.  429 

Declaration   against  R.  R.  Co.  for  damage  by  fire. 

thrown  with  great  force  and  violence  from  and  off  the  said 
train  to  and  upon  the  ground  there  ;  by  means  whereof, 
then  and  there,  one  of  the  legs  of  the  plaintiff  was  broken, 
and  one  of  his  ankles  was  dislocated,  and  he  was  otherwise 
greatly  bruised,  hurt  and  wounded  ;  and  thereby  the  plain- 
tiff was   obliged  to   and  did  then   and  there   lay  out  divers 

large    sums  of    money,   amounting    to dollars,   in    and 

about  endeavoring  to  be  cured  of  the  said  injuries  so  received 
as  aforesaid  ;  and  also  by  means  of  the  premises  the  plain- 
tiff then  and  there  became  and  was  sick,  lame  and  disor- 
dered, and  so  remained  for  a  long  time,  to  wit,  hitherto, 
during  all  which  time  the  plaintiff  suffered  great  pain,  and 
was  hindered  and  prevented  from  transacting  and  attend- 
ing to  his  business  and  affairs,  and  lost  and  was  deprived  of 
divers  great  gains  and  profits  which  he  might  and  otherwise 
would  have    made    and    acquired  :     To    the  damage  of  the 

plaintiff  of dollars,    and  therefore   he   brings    his    suit, 

etc.   (c;) 

As  to  the  averment  of  due  care  and  diligence  on  the 
part  of  the  plaintiff,  see  the  remarks  under  form  No.  197, 
ante. 

Getting  off  a  train  in  motion,  not  at  a  station,  in  spite  of 
the  conductor's  warning,  is  negligence  on  the  part  of  a 
passenger,  and  he  cannot  recover  for  any  injury  occasioned 
thereby,  {w) 

No.  200.     Against  a  railroad  cojupany,  for  damage  caused  'by 
fire  from  engine,  (a) 

{Commence  as   in  No.   197,  ante.)     For  that  whereas  the 

plaintiff,  on,  etc.,    was  the   owner   of stacks   of    wheat, 

containing  a    large  quantity,  to-wit, ,  bushels  of  wheat, 

then  on  his    farm    in    the  township  of ,  in     the  countv 

aforesaid  ;  and  the  defendant  was  before  that  time  and  then 
possessed  of  and  using  and  operating  a  certain  railroad 
leading  from,  etc.,  to,  etc.,  and  running  through  the  plain- 
tiff's said  farm,  and  was  also  possessed  of  the  land  to  the 
said  railroad   there   appertaining,  the   same  being  a  strip   of 

{v)  See  26  111.  373;  38  111.  242  ;  73  1".  394;  83  111.  354. 
(-u)  44  111.  460.     See  50  111.  264. 
[a)  71  111.  493. 


•SfA 


430  CASE. 

Declaration  a;:;ainst  R.  R.  Co.  for  damage  by  fire. 

land  of  about  the  width  of  ore  hundred  feet,  to  wit,  of  the 
width  of  fifty  feet  on  each  side  of  the  middle  of  the  said  rail- 
road, and  extending  through  the  said  farm  :  And  although 
it  was  before  that  time  and  then  the  duty  of  the  defendant 
to  keep  the  said  strip  of  land  free  from  dry  grass  and  weeds, 
so  that  fire  from  the  locomotive  engines  and  trains  of 
the  defendant,  on  the  said  railroad,  Avould  not  by  means 
of  such  dry  grass  and  weeds  spread  and  be  communicated 
therefrom  to  the  said  farm  of  the  plaintiff;  yet  the  defend- 
ant, not  regarding  its  duty,  or  using  due  care,  in  that 
behalf,  did  not  nor  would  keep  the  said  strip  of  land  free 
from  dry  grass  and  weeds  as  aforesaid,  but  on  the  contrary 
thereof  before  that  time  negligently  suffered  large  quanti- 
ties of  such  dry  grass  and  weeds  to  accumulate,  and  then 
negligently  suffered  the  same  to  remain  on  the  said  strip 
of  land ;  by  means  whereof  fire  then  and  there  emitted 
and  thrown  from  a  certain  locomotive  engine  and  train  of 
the  defendant,  on  the  said  railroad,  then  and  there  ignited 
the  said  dry  grass  and  weeds,  and  spread  and  was  communi- 
cated from  and  by  the  same  to  and  upon  the  said  farm  and 
the  said  stacks  of  wheat  of  the  plaintiff,  and  thereby  the 
said  stacks  of  wheat,  being  then  and  there  of  the   value   of 

dollars,  were  then  and  there  consumed,  and  wholly  lost 

to  the  plaintiff. 

{Second  count^     And  whereas  also  the    plaintiff",    on  the 

day  aforesaid,  was  the  owner  of other  stacks  of  wheat, 

containing  a  large   quantity,    to-wit, bushels  of  wheat, 

then  in  a  certain  close  of  the  plaintiff",  in  the  township  and 
county  aforesaid ;  and  the  defendant  was  then  and  there 
possessed  of  and  operating  a  certain  other  railroad  extend- 
ing along  and  adjoining  the  said  close,  and  was  then  and 
there  running  divers  locomotive  engines  on  the  last-men- 
tioned railroad  ;  and  while  a  certain  locomotive  engine  of 
the  defendant,  and  under  its  control,  was  then  and  there 
passing  upon  the  same  railroad,  along  the  said  close,  divers 
sparks  and  brands  of  fire  then  and  there  escaped  and  were 
thrown  from  the  same  locomotive  engine,  by  and  through 
the  mere  carelessness  and  negligence  of  the  defendant,  and 
set  fire  to  certain  stubble  then  in  the  said  close,  and  thereby 
fire  spread  and  was  communicated  to  the  last-mentioned 
stacks  of  wheat  of  the  plaintiff,  whereby  the  same  stacks 
of  wheat,  being  then  and  there  of  the  value  of dollars, 


CASE.  431 

Against  R.  R.  Co.  for  damage  by  fire — Observations. 

were  then  and  there  consumed,  and  wholly  lost  to  the  plain- 
tiff. 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sus- 
tained damage  to  the  amount  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

Evidence  that  the  railroad  company  has  used  and  operated 
the  road,  for  years,  will  sustain  an  averment  in  the  declaration 
that  the  company  is  the  owner  of  the  road,  (x) 

Railroad  companies,  in  the  exercise  of  their  functions, 
should  adopt  such  precautions  as  will  prevent  damage  to  the 
property  of  individuals  by  the  escaping  of  fire  from  locomo- 
tives ;  and  they  may  be  guilty  of  negligence,  and  answerable 
therefor,  if  injury  results  from  fire  so  escaping,  (r) 

A  railroad  company  is  required  to  use  the  same  diligence 
in  removing  dry  grass  and  Aveeds,  and  other  combustible 
materials,  from  exposure  to  ignition  by  fire  from  trains,  that 
a  cautious,  prudent  man  would  use  in  respect  to  combustible 
materials  on  his  own  farm,  if  exposed  to  the  same  hazard 
from  such  materials  {2) 

Even  with  the  use  of  the  best  appliances  to  prevent  the 
escape  of  fire,  if  through  the  overloading  of  the  engine  the 
escape  of  sparks  is  caused  to  a  dangerous  extent,  the  com- 
pany will  be  deemed  guilty  of  gross  negligence,  (a) 

Where  fire  is  communicated  to  a  building,  through  the 
negligence  of  a  railroad  company,  the  owner  can  not  recover 
for  the  loss  of  property  or  money  which  he  could  easily,  and 
without  danger,  have  saved  from  destruction,  (d) 

It  is  the  duty  of  all  railroad  corporations  to  keep  their 
right  of  way  clear  from  all  dead  grass,  dry  weeds,  or  other 
combustible  material,  and  for  neglect  they  are  liable  to  the 
person  injured,  {c) 

It   is  not   negligence  pef    se   for  a    railroad    company  to 

(x)   42  111.  407. 

(/)  28  111.  9  ;  39  111.  455;  42  111.  355  ;  53  III.  447  ;  3  C.  B.  229 ;  71  111.  493. 

(2)  42  111.  407  ;  86  111.  443. 

(a)   53  111.  447. 

(i)   53  111-  447- 

(<•)  Rev.  Stat. (1 874)  S07;  Rev.  Stat.  (1S77)  770. 


432  "    CASE. 


DeclaiMtion  against  K.  R.  Co.  for  killing  cattle. 


suffer  grass  and  weeds  to  accumulate  on  its  road  ;  the  fact, 
however,  is  proper  evidence  for  the  jury,  who  may  find 
negligence  from  it.  Owners  of  lands  contiguous  to  rail- 
roads are  as  much  bound,  in  law,  to  keep  their  lands  free 
from  an  accumulation  of  dry  grass  and  weeds  as  railroad 
companies  are  ;  so  where  a  fire  is  started  on  the  company's 
land,  and  is  communicated  to  fields  adjoining,  the  negli- 
gence of  such  owner,  in  that  respect,  will  be  held  to  have 
contributed  to  the  loss.  And  unless  it  appears  that  the 
negligence  of  the  company  is  greater  than  that  of  such 
land-owner,  the  latter  cannot  recover  for  injuries  thus 
arising,  {c) 

No.  201.     Against  a  railroad  company,  on  the   statute,  {d)  for 
damages  resulting  from  notfc7icing  its  road,  etc. 

[Commence  as  in  No.    197,  ante.)     For  that  whereas  the 

defendant,  before  and  on  the  day  of ,  in  the  year 

18 — ,  in  the  county  aforesaid,  was  a  railroad  corporation, 
and  was  possessed  of  ajid  using  and  operating  a  certain 
railroad,  extending  through  a  part  of  the  county  aforesaid, 
the  line  of  which  said  railroad  then  and  there  was,  and  for 
more  than  six  months  before  that  time  had  been,  open  for 
use ;  yet  the  defendant,  not  regarding  the  statute  in  such 
case  made  and  provided,  did  not  before  that  time  there 
erect  and  then  and  there  maintain  fences  on  the  sides  of  its 
said  railroad,  suitable  and  sufficient  to  prevent  horses  from 
getting  upon   the   said   railroad  ;    by  means  whereof,  and   for 

want  of  such   fences,  horses  of  the  plaintiff  then  and 

there  strayed  and  went  upon  the  said  railroad,  at  a 
certain  place  where  such  fence  was  then  necessary  to  pre- 
vent hoises  from  getting  upon  the  said  railroad  from  the 
lands  adjoining  the  same,  and  not  where  the  said  railroad 
then  ran  through  uninclosed  lands  lying  at  a  greater  dis- 
tance than  five  miles  from  any  settlement,  nor  where  the 
proprietors  of  the  lands  through  which  the  said  railroad  then 
ran  had  then  already  erected  fences,  or  agreed  with  the. 
dcfenda7it  so   to  do,  nor  at  the  crossing  of  any  public  road 


(c)  47  111.  497,  505;  42  111.  407  ;  51  111.  78;  S3  111.  447;  54  HI-  S04. 
[ii)  2  Starr  &  Curtis'  An,  Stat.  1927;  Rev.  Stat.  (i.'-'77)  769. 


CASE.  433 

Declaration  against  R.  R.  Co.  for  killing  cattle. 

or  highway,  nor  within  the  limits  of  any  town,  city  or  vil- 
lage;  and  the  said  horses  so  being  on  the  said  railroad 
there,  (to  wit,  at  the  place  in  that  behalf  aforesaid,)  a 
certain  engine  of  the  defendant,  then  driven  and  governed 
by  divers  then  agents  of  the  defendant,  on  the  said  railroad, 
then    and  there   ran  and  struck  upon   and    against  the  said 

hones,  and  thereby  of  the  said  horses,  each   of  the 

value  of  dollars,   were    then   and    there   killed,    and 

wholly  lost  to  the  plaintiff,  and  the  others  of  the  said  horses, 
each  of  the  value  of dollars,  were  then  and  there  great- 
ly hurt,  wounded  and  lamed,  and  became  of  no  use  or  value 
to  the  plaintiff. 

[Second  count,  for  not  maintaining  cattle- guards^  And 
whereas  also  the  defendant,  before  and  on  the  day  afore- 
said, in  the  county  aforesaid,  was  a  railroad  corporation, 
and  was  possessed  of  and  Jising  and  operating  a  certain 
other  railroad  extending  through  a  part  of  the  county 
afo'.esaid,  the  line  of  which  last-mentioned  railroad  then 
and  there  was,  and  for  more  than  six  months  before  that 
time  there  had  been,  open  for  use ;  yet  the  defendant,  not 
regarding  the  statute  in  such  case  made  and  provided,  did 
not  before  that  time  there  construct  and  then  and  there 
maintain  cattle-guards,  suitable  and  sufficient  to  prevent 
horses  from  getting  upon  the  same  railroad,  at  a  certain 
road-crossing  there  before  that  time  and  then  existing  and 
established,  to  wit,  at  the  crossing  of  the  same  railroad  and 
a  certain  road  {describe  the  road,  by  name,  location,  or 
tcnnini,  and  if  it  crosses  the  railroad  more  than  once,  state 
the  partictdar  place);    by   means   whereof,   and   for   want  of 

such  cattle-guards, other  horses  of  the   plaintiff  then 

strayed  and  went  upon  the  same  railroad,  from  the  said 
road-crossing,  and  strayed  and  wandered  along  and  upon 
the  same  railroad,  beyond  and  near  the  said  road-crossing, 
(to  wit,  in  the  county  aforesaid)  ;  and  the  last  mentioned 
horses  so  being  on  the  same  railroad  as  aforesaid,  a  certain 
other  engine  of  the  defendant,  then  driven  and  governed  by 
divers  then  agents  of  the  defendant,  on  the  same  railroad, 
then  and  there   ran   and  struck  upon   and  against  the  same 

horses,  and  thereby of  the  same  horses,  each  of  the 

value   of dollars,  were    then    and    there    killed,    and 

wholly  lost  to  the  plaintiff,  and  the  othersof  the  same  horses, 

each  of  the  value   of  dollars,   were  then  and  there 

28 


434  CASE. 

Against   R.  R.  Co.,  for  killing  cattle — Observations,  etc. 

greatly  hurt,  wounded  and  lamed,  and  became  of  no  use  or 
value  to  the  plaintift". 

[A  comit  at  common  law  may  be  mserted,  charging  the  in- 
jury to  have  been  negligently  and  wilfully  done,  and 
omitting  all  allegations  in  respect  to  fences  and  cattle- 
gliards. ) 

Wherefore  the  plaintiff  says  that  he  is  injured,  and  has  sus- 
tained damage  to  the  amount  of dollars,  and  therefore 

he  brings  his  suit,  etc.  {e) 

Since  the  passage  of  the  act  of  1855,  railroad  companies, 
in  Illinois,  are  liable  for  injuries  caused  to  cattle  that  stray 
upon  their  roads  through  want  of  the  required  fences  or  cat- 
tle-guards. (/") 

In  an  action  against  a  railroad  company,,  under  this  stat- 
ute, the  plaintiff  must  show  that  the  railroad  had  been  open 
for  use  six  months  before  the  occurrence  of  the  injury;  {g) 
and  that  such  injury  was  occasioned  by  the  omission  of  the 
company  to  maintain  a  fence  or  cattle-guards  at  some  place 
where  the  statute  requires  the  same  to  be  maintained.  {It) 
The  declaration  need  not  allege  that  the  place  where,  etc, 
was  not  a  farm-crossing,  as  the  statute  does  not  exempt  the 
company  from  fencing  its  road  at  such  crossings  ;  and  if  the 
required  bars  or  gate  at  a  farm-crossing  Avere  left  down  or 
open  by  some  one,  without  the  fault  of  the  company,  and 
thereby  the  animals  got  upon  the  track,  and  were  injured,  that 
is  a  matter  of  defense,  (z) 

Although  the  declaration  must  negative  all  the  excep- 
tions in  the  statute,  the  burden  is  not  on  the  plaintiff  to 
prove  the  averment  that  there  was  no  contract  between  the 
company  and  the  owner  of  the  ground  that  the  latter  should 

(t!)  See  25  111.  529;  27  III.  iqS;  30  111.  452;  55  111.  230. 
(/)  13  Bradw.  3S7;  SS  111.  36S;  107  111.  577;  12  Bradw.  304;  25  111.  529;  So 
111.  72;  82  111.  632;  85  111.  370. 
[S)  27  111-  30.  41;  26  111.  631;  30  111.  347;  55  111.  230. 
{h)  27  III.  207,  48;  85  111.  2S8. 
(?'J  27  111.  198;  33  111.  2S9  ;    14  Cr.adw.  394;  13  Bradw.  261. 


CASE.  435 

Against  R.  R.  Co.,  for  killing  cattle. — Observations,  etc. 

build  the  fence  at  the  place  where  the  animal  went  upon  the 
railroad.  (/) 

A  town  or  village,  within  the  meaning  of  the  statuts,  is  any 
a.ssemblage  of  houses,  for  dwellings,  or  places  of  business,  or 
both,  whether  situated  on  regularly  laid  out  streets  and  alleys 
or  not.  (/(') 

Railroad  companies,  by  force  of  the  statute,  are  required 
to  fence  their  roads  with  sufficient  fences  to  turn  cattle,  and 
after  erecting  to  keep  them  in  repair;  they  are  required  to 
put  in  gates  or  bars  at  farm-crossings,  which  are  a  part  of 
the  fence,  and  the  duty  to  keep  their  fences  in  repair  includes 
the  duty  of  keeping  these  gates  or  bars  securely  closed,  so 
as  to  prevent  cattle  from  getting  upon  their  roads  at  such 
places  as  well  as  at  other  points.  And  while  these  com- 
panies are  not  required  to  keep  such  a  force  of  men  on  their 
roads  that  a  breach  in  a  fence  would  be  seen  and  repaired 
as  soon  as  made,  still  the  law  requires  them  to  keep  a  force 
sufficient  to  discover  and  close  such  a  breach  within  a  reason- 
able time.  (/) 

Where  a  servant  of  the  company  went  ove'r  the  road  at 
4  p.  m.  Saturday,  and  found  the  fences  in  repair,  and  the 
next  Monday  morning  hj  again  passed  over  the  road,  and 
found  that  a  fence  had  been  recently  broken,  and  cattle 
had  got  upon  the  track  and  been  injured,  it  was  held  that 
the  company  showed  due  diligence,  and  was  not  liable  for 
the  injury  to  the  cattle.  (;«)  If  a  horse  takes  fright,  and 
runs  away,  and  gets  upon  a  railroad  at  a  point  where  the 
company  is  bound  to  fence,  and  is  killed  upon  the  track, 
the  fact  that  the  fence  or  cattle-guard  was  insufficient  at 
that  point  will,  alone,  render  the  company  liable.  But  if 
the  horse,  in  its  fright,  gets  upon  the  track  by  breaking  a 
fence  or  leaping  a  guard  which   would  be  sufficient  under 

U)  40  111.  347. 

{i)  27  111.  48. 

(/)  54  111.  528;  55  111.  226;  85  111.  2S8. 

(w)  47  111-  206;  see  55  111.  226;  88  111.  368. 


436  CASE. 

Against  R.  R.  Co.,  for  killing  cattle — Observations,  etc. 

ordinary  circumstances,  then  the  company  will  not  be 
obliged  to  prove  an  absence  of  negligence  in  running  the 
train,  and  will  not  be  liable  unless  shown  to  have  been 
guilty  of  carelessness  or  a  wilful  commission  of  the  in- 
jury, in) 

A  good  and  sufficient  fence  is  not  merely  one  which  will 
turn  ordinary  animals,  but  one  which  will  turn  animals  which 
are  to  some  extent  unruly,  {o) 

It  is  gross  negligence  in  an  engine-driver  not  to  observe 
cattle  upon  or  near  the  track,  at  a  road-crossing  eighty  or 
one  hundred  yards  distant,  when  he  could  readily  do  so.  (/) 
It  is  gross  negligence  to  drive  a  train  of  cars  before  the 
engine,  at  a  high  rate  of  speed,  through  a  deep  cut,  to- 
wards a  crossing  at  the  end  of  the  cut,  without  sounding 
the  bell  or  whistle  continuously  for  the  distance  required  by 
the  statute  {g)  If  an  animal  is  suddenly  driven  on  the 
track  by  a  dog,  and  there  is  no  fault  on  the  part  of  the  en- 
gine driver,  the  company  will  not  be  held  liable,  (r)  While 
the  failure  of  a  railroad  company  to  fence  its  road  is  neg- 
ligence, it  is  also  negligence  on  the  part  of  the  owner  of 
horses  to  place  them,  with  blind  bridles  on  them,  in  a  field 
through  which  an  unfenced  railroad  passes.  The  owner 
has  a  right  to  place  them  in  the  field,  but  not  so  blinded  as 
to  render  them  incapable  of  avoiding  danger.  In  such  a 
case,  whether  the  one  party  or  the  other  has  been  guilty  of 
the  greater  negligence,  is  a  question  to  be  determined  by  the 
jury,  is) 

If  a  railroad  company  has  erected  and  maintains  sufficient 
fences  and   cattle-guards,  then   it   is    not   liable   for   injuries 

(«)  38  III.  410 

{o)  Ibid. 

{p)  38  111.  424;  43  I"-  77;  55  111- 226. 

{q)  38  111.  482. 

(r)  43  111.  77. 

{s)  36  111.  409;  see  55  111.  379. 


CASE.  437 

Declaration  against  R.  R.  Co.  for  killing  persons,  etc. 

caused  to  cattle  on  its  road,  unless  such  injuries  are  caused 
by  the  negligent  or  wilful  act  of  the  company,  [t] 

An  omission  to  ring  a  bell,  or  sound  a  whistle,  at  a  road- 
crossing,  does  not  render  a  railroad  company  liable  for  an 
injury  to  animals,  unless  such  ringing  or  sounding  would 
have  prevented  the  injury.  Where  a  company  is  not  bound 
to  fence  its  road,  it  is  only  liable  for  injuries  done  to  ani- 
mals through  wantonness  or  gross  negligence,  {z/) 

The  trustees  of  a  railroad  company,  if  they  do  business 
in  the  name  of  the  company,  are  liable  to  be  sued  in  that 
name,  and  their  property  is  liable  for  debts  incurred  while 
transacting  business  under  that  name,  (z') 

A  railroad  company  can  not  free  itself  from  liability  by 
leasing  its  road  to  other  parties.  Contractors  for  the  con- 
struction of  a  railroad  are  the  servants  of  the  company,  and 
for  their  tortious  acts,  while  about  the  company's  business, 
the  company  is  liable,  (w) 

The  company  owning  a  railroad  not  fenced  as  required  by 
lav/,  and  also  the  company  using  it,  are  liable  for  injuries 
done  to  cattle  by  the  trains  of  the  latter  company,  (x) 

No.    202.     Against  a    railroad  company,  for  causing  death 
of  person — Snit  by  administrator. 

{Title  of  court,  etc.,  as  in  No.  197,  ante.)  A.  B. 
plaintiff,  administrator  of  the  estate  of  G.  H.,  deceased, 
who   died    intestate,  complains  of  the  Railroad   Com- 

pany, defendant,  of  a  plea  of  trespass  on  the  case:  For 
that  whereas  the  defendant,  in  the  life-time  of  the  said 
G.  H.,  to  wit,  on,  etc.,  in,  etc.,  was  possessed  of  and  using 
and  operating  a  certain  railroad  extending  through  a  part  of 
the  county  aforesaid,  and  was  also  then  and  there  pos- 
sessed of  a  certain  locomotive  engine,  with  a  certain  train 
of  cars   then   attached  thereto,  which    said    locomotive    en- 

(/)  25  111.  529.  See  30  III.  117,  451 ;  ^  111.  304  ;  46  111.  494. 

{u)   29  111.  447;  47  111.  295. 

(v)   30  111.  353. 

{xo)   22  111.  106;  2  111.  585,  623.  See  15  111.  72;  14  111.  S5. 

(jt)  39  111,  272;  40  111.  143.     But  see  i  Allen  (Mass.)  9. 


438  CASE. 

Declaration  against  R.  R.  Co.  for  killing  person,  etc. 

gine  and  train  were  then  and  there  under  the  care  and  man- 
agement of  divers  then  servants  of  the  defendant,  who 
were  then  and  there  driving  the  same  upon  and  along  the 
said  railroad,  near  and  towards  a  certain  crossing  of  the  said 
railroad  and  a  certain  public  highway  there,  (to  wit,  a  cer- 
tain  public   highway  then   leading  from to ;) 

And  while  .the  said  G.  H.,  zvitJi  all  due  care  a)id  diligence, 
was  tlien  riding  across  the  said  railroad,  at  the  said  crossing, 
upon  the  said  public  highway  there,  in  a  certain  wagon 
drawn  by  two  horses,  the  defendant  then  and  there,  by  its 
said  servants,  so  carelessly  and  improperly  drove  and  man- 
aged the  said  locomotive  engine  and  train,  that  by  and 
through  the  negligence  and  improper  conduct  of  the  de- 
fendant, by  its  said  servants,  in  that  behalf,  the  said  loco- 
motive engine  and  train  then  and  there  ran  and  struck  with 
great  force  and  violence  upon  and  against  the  said  wagon, 
and  thereby  the  said  G.  H.  was  then  and  there  thrown  with 
great  force  and  violence  from  and  out  of  the  said  wagon 
to  and  upon  the  ground  there,  and  was  thereby  then  and 
there  killed.  And  the  plaintiff  avers,  that  the  said  G.  H. 
left  him  surviving  one  J.,  his  widow,  and  one  L.,  his  son 
and  next  of  kin,  who  are  still  living ;  and  that  by  reason  of 
the  death  of  the  said  G.  H.  as  aforesaid,  the  said  J.  has 
been  and  is  deprived  of  her  means  of  support,  and  the  said 
L.  has  been  and  is  deprived  of  his  means  of  support  and  ed- 
ucation, {y) 

[A  count  may  be  inserted,  charging  neglect  to  ring  a  bell,  etc., 
like  N'o.  198,  ante.) 

To  the  damage  of  the  plaintiff,  as  administrator  as  afore- 
said, of dollars,   and  therefore   he   brings   his   suit,  etc. 

And  the  plaintiff  brings  into  the  court  here  the  letters  of  ad- 
ministration to  him  granted  by  the  County  Court  of  the  coun- 
ty aforesaid,  which  give  sufficient  evidence  to  the  court  here 
of  the  grant  of  administration  of  the  said  estate  to  the  plain- 
tiff, etc. 

This  action  is  given,  in  Illinois,  by  the  act  of  February 
12th,  1853.  (.s-)  In  order  to  recover,  the  plaintiff  must 
allege  in  his  declaration,  and  prove,  that  the  deceased  left 
a  widow  or  next  of  kin,  to  whom   the  damages   can  be  dis 

(j)  See  26  111.  400;  10  Law  &  Eq.  439;  3  Duer,  635. 

{z)  I  Starr  &  Curtis'  An.  Stat.  1290;  Rev.  Stat,  (1877)  55S.  See  15  Biaclw. 
347;   106  111.  131  ;  107  111.  644. 


CASE,  439 

Against  R.  R.  Co.  for  killing  person — Observations,  etc. 

tributed.  There  may  be  persons  who  have  been  for  years 
separated  from  their  families  and  kindred,  and  who  in  all 
probability  would  never  return  to  them;  and  in  case  of  the 
death  of  such  persons,  there  would  be  no  next  of  kin  who 
could  sustain  any  pecuniary  loss  thereby,  because  a  continu- 
ance of  their  lives  would  have  brought  no  pecuniary  benefit 
to  their  kindred.  The  sole  measure  of  damages  is  the  pecun- 
iary loss  ;  nothing  is  to  be  allowed,  by  way  of  solace,  for  the 
bereavement,   {a) 

The  action,  under  the  statute,  is  to  be  brought  by  the  ex- 
ecutor or  administrator  of  the  deceased  ;  and  it  is  not  limited 
to  those  cases  where  the  deceased  leaves  a  widow.  Any  mo- 
ney recovered  by  such  action  is  not  to  be  treated  as  a  part  of 
the  estate  of  the  deceased  ;  Creditors  do  not  get  any  benefit 
from  it.  It  is  to  be  distributed  among  those  to  whom  the  per- 
sonal estate  would  go  by  law,  in  the  absence  of  a  will.  Or- 
phans may  have  redress,  under  this  statute,  where  both  pa- 
rents are  killed,  and  a  husband  for  the  loss  of  a  wife,  {d)  (But 
the  husband  is  not  in  any  sense  next  of  kin  to  the  wife,  nor 
the  wife  to  the  husband.)  {c) 

The  fact  that  the  person  killed  by  a  railroad  train,  at  a 
crossing,  was  partially  deaf,  would  not  excuse  the  continuous 
sounding  of  the  whistle,  or  ringing  of  the  bell,  from  the  point 
required  by  the  statute,  [d)  But  while  every  traveler  on  a 
highway  crossed  by  a  railroad,  is  entitled  to  the  benefit  of  the 
signal  required  by  the  statute,  at  the  same  time  it  is  the  duty 
of  such  traveler,  on  approaching  a  crossing,  to  make  use  of 
all  his  faculties  to  discover  a  train — not  only  to  listen  for  a 
bell  or  whistle,  but  to  look  out  and  see  whether  a  train  is 
coming,  {e). 

{a)  80  111.  88;  4  Biss.  C.  C.  430,  448;  91  111.  302;  108  111.  28S;  107  111.  44; 
26  111.  400;"  55  111.  381;  77  111.  68;  81  111.  245;  75  HI-  468;  69  111.  426. 

(6)  18  111.  349;  42  111.  174;  47  III.  66;  54  III.  482;  19  Bradw.  Ii6,  591: 
72  U.  S.  90;   115  111.  115;   10  Bradw.  404;  S.  C.  105  111.  364. 

{c)  44  ill.  446 ;  2  Kent's  Com.  136.     See  2  Biss.  C.  C.  282. 

(d)  38  111.  482.     See40  111.  21S;  108  111.  213. 

(<«)  40  111.  218;  46  111.  74;  S3  111.  115;  55  111.  379.  See  42  111.  288;  4'. 
111.  64;  45  111.  469;  49  III.  499;  47  111.  408.  514;  52  111.  325;  51  111.  495: 
55  111.  367;  80  III.  52S;  Si  111.  245,  292;  83  111.  427. 


440  CASE. 

Declaration  against  a  city  for  negligence,  etc. 

In  an  action  against  a  railroad  company,  to  recover  dam- 
ages for  the  death  of  a  passenger,  alleged  to  have  been  occa- 
sioned by  the  wrongful  or  negligent  conduct  of  the  agents  of 
the  company,  it  appeared  that  the  train,  upon  which  the  de- 
ceased was  a  passenger,  had  stopped  at  a  station  and  remained 
a  sufficient  length  of  time  to  enable  passengers  to  leave  it  in 
safety ;  but  the  deceased,  not  availing  himself  of  that  oppor- 
tunity, waited  until  the  train  was  again  in  motion,  and  then, 
without  the  interference  or  suggestion  of  any  of  the  servants 
of  the  company,  attempted  to  leave  the  train,  and,  while  so 
doing,  was  thrown  under  the  cars,  and  received  injuries  of 
which  he  died.  There  appearing  to  have  been  no  misman- 
agement of  the  train  on  the  part  of  the  company,  it  was  held 
that  it  was  not  liable.  {/) 

In  determining  the  degree  of  negligence  of  a  person,  the 
jury  should  take  into  consideration  his  capacity.  A  child  can 
not  be  required  to  exercise  as  much  care  and  caution  as  a 
person  of  mature  years,  but  only  such  care  as  a  person  of  his 
age  and  discretion  would  naturally  use.  Ordinary  neglect  as 
to  a  person  of  full  age  and  capacity,  might  be  gross  negli- 
gence as  to  a  child.  (^) 

A  child,  four  years  old,  fell  into  a  water  tank,  constructed 
by  the  city  of  Chicago,  and  was  drowned.  Held,  that  the 
father,  as  administrator,  could  maintain  an  action  under  the 
act  which  gives  a  remedy  when  the  death  of  a  person  is 
caused  by  the  wrongful  act,  default  or  negligence  of  an- 
other, ill). 

No.  203.     Against  a  city,  for  permitting  a  sidewalk  to  remain 
ont  of  repair,  whereby  plaintiff  zvas  injured. 

(  Title  of  courts  etc.,  as  in  No.  197,  ante.)  A.  B.. 
plaintiff,  by   E.   F.,   his   attorney,   complains   of  the  city    of 

,  defendant,  of  a  plea  of  trespass  on  the  case :    For  that 

whereas  the  defendant,  before  and   on,  etc.,  was  possessed 

(/)  54  111.  133  ;  52  111.  290.  See  77  111.  109. 

(^)  54  111.  482  ;  26  111.  255  ;  22Vt.  213;  19  Conn  507. 

iji)   18  111.  349;  42  111.  174.  See  47  111.  66;  54  111.  482;  55  111.  367. 

1 


CASE.  441 

Against  a  city,  for  negligence — Observations,  etc. 

and   had  control   of  a  certain  public   sidewalk  on  a  certain 

public  street,   called street,    in   the  said  city,  in  the 

county 'aforesaid,  and  oug-ht  to  have  kept  the  same  in  good 
and  safe  repair  and  condition  :  Yet  the  defendant,  not  re- 
garding its  duty  in  that  behalf,  while  it  was  so  possessed 
and  had  the  control  of  the  said  sidewalk,  to  wit,  on  the 
day  aforesaid,  there  wrongfully  and  negligently  suffered 
the  same  to  be  and  remain  in  bad  and  unsafe  repair  and 
condition,  and  divers  of  the  planks  wherewith  the  said 
sidewalk  was  laid  to  be  and  remain  broken  and  unfast- 
ened ;  by  means  whereof  the  plaintiff,  who  was  then  and 
there  passing  along  and  upon  the  said  sidewalk,  then  and 
there  necessarily  and  unavoidably  tripped  and  stumbled 
upon  and  again.st  one  of  the  said  broken  and  unfastened 
planks  of  the  said  sidewalk,  and  was  thereby  thrown  and 
fell  to  and  upon  the  said  sidewalk  and  the  ground  there, 
and  thereby  the  right  wrist  of  the  plaintiff  was  then  and 
there  dislocated  and  broken,  and  he  became  sick,  lame 
and  disordered,  and  so  remained  for  a  long  time,  to  wit, 
from  thence  hitherto,  during  all  which  time  he  thereby 
suffered  great  pain,  and  was  hindered  from  transacting  his 
business  and  affairs,  and  also,  by  means  of  the  premises,  was 
there  obliged  to  and   did  lay  out   divers   sums    of  money, 

amounting  to dollars,  in  and  about  endeavoring  to  be 

healed   of  the  said  wounds,  sickness  and  disorder  :     To  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

Where  the  law  imposes  the  duty  upon  a  municipal  corpor- 
ation of  keeping  its  streets  in  a  safe  condition  for  the  use  of 
the  public,  an  action  on  the  case  will  lie  to  recover  damages 
occasioned  by  a  neglect  of  such  duty,  (i)  And  such  duty 
can  not  be  shifted  by  the  corporation  upon  a  person  who  may 
be  employed  to  perform  it.   (j) 

If  an  individual  constructs  a  hatchway  in  a  sidewalk,  he 
musl  respond  for  any  damages  resulting  from  his  negli- 
gence to  render  it  safe  and  free  from    danger.      It  is    also 

(?)  49  111.  479  ;  14  111.  85  ;  15  111.  72  ;  20  111.  385  ;  17  111.  143 ;  25  111.  424 ;  42 
^^'-  503;  52  III.  189;  53  111.  407;  Ang.  &  Ames  on  Corp.,  sec.  10;  17  N.  Y. 
104;  3  Seld.  (N.  Y.)  493;  2  Black,  (U.  S.)  418.     See  46   Penn.   221  con/ra. 

U)  Ibid. 


442  CASE. 

Declaration  for  negligence,  etc. 

the  duty  of  the  city  to  keep  the  streets  and  sidewalks  in 
safe  condition,  and  it  will  be  liable  for  injury  resulting  from 
its  neglect  of  duty  in  that  respect.  But  should  a  recovery 
be  had  against  the  city  in  such  case,  the  person  whose  neg- 
lect of  duty  caused  the  injury  will  be  liable  over  to  the  city 
therefor,    (k) 

The  measure  of  damages  in  an  action  against  a  munici- 
pal corporation,  for  negligence  in  not  keeping  its  streets 
and  sidewalks  in  good  condition,  is  compensatory,  unless  the 
proof  shows  the  injury  complained  of  was  willful,  which  is 
scarcely  possible  in  the  case  of  a  corporation  of  that  descrip- 
tion. (/) 

JVo.  204.  Agaitist  defendant,  for  keeping  uncovered  a  vault- 
hole  in  street^  adjoviing  his  premises ^  whereby  plauitiff  fell 
down^  and  was  injured. 

[Title  of  court,  etc.,  as  in  No.  197,  ante,)  A.  B.,  plaint- 
iff, by  E.  F.,  his  attorney,  complains  of  C.  D.,  defendant,  of 
a  plea  of  trespass  on  the  case :  For  that  whereas  the  de- 
fendant, before  and  on,  etc.,  was  the  possessor  and  occu- 
pier of  a  certain  messuage  and  premises,  with  the  appur- 
tenances, situate  in  the  county  aforesaid,  and  near  to  a  cer- 
tain common  and  public  highway  there,  in  which  said  high- 
way there  now  is,  and  before  and  on  the  day  aforesaid  there 
was,  a  certain  hole,  opening  into  a  certain  cellar  and  vault 
of  and  belonging  to  the  said  messuage  and  premises  of  the 
defendant,  to  wit,  in  the  county  aforesaid :  Yet  the  defend- 
ant, well  knowing  the  matters  aforesaid,  while  he  was  so 
the  possessor  and  occupier  of  the  said  messuage  and  prem- 
ises, with  the  appurtenances,  and  while  there  was  •  such 
hole  as  aforesaid,  to  wit,  on  the  day  aforesaid,  there  wrong- 
fully and  unjustly  permitted  the  said  hole  to  be  and  con- 
tinue, and  the  same  then  and  there  was  so  badly,  insuf- 
ficiently and  defectively  covered,  that  by  means  of  the 
premises,  and  for  want  of  a  proper  and  sufficient  covering 
to  the  said  hole,  the  plaintiff,  who  was  then  and  there 
passing  in  and  along  the  said  highway,  then  and  there 
necessarily  and  unavoidably  slipped  and  fell  into  the  said  hole, 

{k)  53  111.  1S9.  See  53  111.  212;  44  111.  295;  105  III.  554;  107  111,  186; 
104  111.  268,  641. 

[I)  49  111.  241  ;   53  111.  407. 


CASE.  443 

For   negligence — Observations,   etc. 

and  thereby  the  left  leg  of  the  plaintiff  was  then  and  there 
broken,  and  he  became  and  was  sick,  sore,  lame  and  disor- 
dered, and  so  remained  for  a  long  space  of  time,  to-wit,  from 
thence  hitherto,  during  all  which  time  the  plaintiff  thereby 
suffered  great  pain,  and  was  prevented  from  attending  to  and 
transacting  his  affairs  and  business  ;  and  also,  by  means  of 
the  premises,  was  obliged  to  and  did  pay  out  a  large 
sum,  to  wit,  the  sum  of dollars,  in  and  about  endeavor- 
ing to  be  healed  of  the  said  wounds,  sickness  and  disorder  : 

To  the  damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  ete. 

Where  the  tenant  of  a  house  was  bound  to  repair  it,  but 
the  landlord  superintended  the  repairs,  and  the  cellar  was  left 
in  a  dangerous  state,  and  an  accident  happened,  the  landlord 
was  held  liable,  (w)  So  where  the  defendant  had  employed 
a  bricklayer  to  make  a  sewer,  who  left  it  open,  in  consequence 
of  which  the  plaintiff  fell  m,  and  broke  his  leg,  the  defendant 
was  held  liable,   (n) 

Where  a  clerk  of  a  retail  merchant  went  down  into  a  cellar, 
that  was  being  excavated  by  the  landlord  of  the  merchant, 
to  recover  a  lady  customer's  hat,  and  while  there  was  injured 
by  the  falling  of  a  wall,  it  was  held  that  he  could  maintain 
an  action  against  the  person  doing  the  work,  for  the  injury 
received,  [o) 

Every  person  must  so  use  his  own  property  as  not  to  in- 
jure his  neighbor;  and  if  he  fails  so  to  do,  through  the 
want  of  reasonable  care  or  skill  on  the  part  of  himself  or  his 
servants,  he  is  liable  for  injuries  thereby  sustained.   (/) 

An  owner  of  land,  who  contracts  with  a  skillful  person 
to  erect  a  building  thereon,  and  who  for  that  purpose  surren- 
ders the  premises  for  the  use  of  the  contractor,  is  not  during 
the  erection  of  the   building  answerable   in  damages  for  an 

(m)  4  Taunt.  649;  2  H.  Black.  349. 

(«)  6  Esp.  6;  5  B.  &  C.  559.  See  18  111  349;  20  111.  544;  26  111.  320;  52 
111.  190. 

{0)  45  111.  444. 
^        (/)  45  111-  455 ;  46  111.  494;  49  HI-  234,  476- 


444  CASE. 

Declaration  against  proprietors  of  stage-coach  for  negligence. 

accident  occurring  to  a  stranger  passing  by.  If  the  sufferer 
has  any  recourse,  it  is  against  the  contractor,  or  the  corpor- 
ation within  which  the  property  is  situated.  The  persons  wh^ 
may  be  accused  of  negh"gence,  under  such  circumstances,  are 
not  the  servants  of  the  owner  of  the  premises,  but  of  the  con- 
tractor. (^) 

No.  205.     Against  propiietors  of  stage-coach  for  negligence. 

Commence  as  in  last  precedent}^  For  that  whereas  the 
defendant,  before  and  at  the  time  of  committing  the  griev- 
ances hereinafter  mentioned,  was  the  owner  of  a  certain 
common  stage-coach,  by  him  used  and  employed  in  carry- 
ing passengers  from,  etc.,  to,  etc.,  and  divers  other  places, 
for  hire  and  reward;  and  being  such  owner  of  the  said 
stage-coach,  he,  the  defendant,  on,  etc.,  at  etc.,  aforesaid, 
received  the  plaintiff  into  the  said  coach  as  a  passenger,  to 
be  safely  conveyed  thereby  on  a  journey  from,  etc.,  afore- 
said, to,  etc.,  aforesaid,  for  a  certain  fare  and  reward  to  the 
defendant  in  that  behalf;  and  by  reason  thereof  the  defend- 
ant ought  carefully  to  have  conveyed  the  plaintiff,  by  the 
said  coach,  on  the  said  journey  :  Yet  the  defendant,  not 
regarding  his  duty  in  that  behalf,  so  carelessly  and  unskill- 
fully  conducted  himself  that  by  and  through  the  negligence 
and  default  of  the  defendant  and  his  servants,  and  for  want 
of  due  care  and  attention  to  their  duty  in  that  behalf,  the 
said  coach  afterwards,  and  while  the  same  was  conveying 
the  plaintiff  on  the  said  journey,  and  before  the  arrival 
thereof  at,  etc.,  aforesaid,  to  wit,  on  the  day  aforesaid, 
in  the  county  aforesaid,  was  overset  and  thrown  down ;  by 
means  whereof  the  plaintiff,  then  being  therein,  was  greatly 
cut,  bruised  and  wounded,  and  the  left  leg  of  the  plaintiff 
was  then  and  there  broken,  and  he  became  sick,  sore, 
lame  and  disordered,  and  so  remained  for  a  long  space  of 
time,  to  wit,  from  thence  hitherto,  during  all  which  time 
he,  the  plaintiff,  thereby  suffered  great  pain,  and  was  pre- 
vented from  attending  to  and  transacting  his  affairs  and 
business,  and  was  also  by  means  of  the  premises  obliged 
to  lay  out,  and   did  lay  out,  a    large  sum  of  money,  to  wit, 

{q)  2\  111.  224.     See  54  III.  397, 


CASE.  445 

Declaration  for  keeping  a  dog  used  to  bite,  etc. 

dollars,  in   and  about  endeavoring  to  be  healed  of  the 

said   wounds,  sickness   and    disorder;  and    also  thereby  the 
plaintiff  was   hindered   and   prevented    from    continuing   his 

said  journey,  and    was  detained    at   a    certain    inn  at   , 

for  the   space  of weeks,  and  during  that  time  there  in- 
curred   great  expenses,  amounting    to  dollars,  in    and 

about  his  necessary  support  and  maintenance  :    To  the  dam- 
age, etc. 

Where  a  traveler  in  a  public  coach  is  injured  by  the  care- 
lessness of  the  driver,  such  carelessness  is  to  be  deemed  neg- 
ligence on  the  part  of  the  owner,  in  a  suit  brought  against  him 
for  damages,  {r) 

As  regards  passengers,  a.  stage-coach  proprietor  is  not  liable 
for  any  personal  injury  they  may  sustain  from  the  upsetting 
of  the  coach,  etc.,  unless  he,  or  his  servants,  be  guilty  of  gross 
negligence,  or'unskillfulness  in  driving,  or  providing  horses, 
coach  or  harness,  etc. ;  {s)  but  the  breaking  down  or  upset- 
ting of  the  coach  is  said  to  be  prima  facie  evidence  of  neg- 
lect, {t) 

No.    206.     Against  defendant,  for  keeping  a   dog  zvhich   bit 

plaintiff. 

[Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
defendant,  on,  etc.,  and  from  thence  until  and  at  the  time 
of  the  damage  and  injury  to  the  plaintiff  as  hereinafter 
mentioned,  to  wit,  in  the  county  aforesaid,  wrongfully,  and 
injuriously  did  keep  a  certain  dog,  he,  the  defendant,  during 
all  that  time  well  knowing  that  the  said  dog  then  was  used 
and  accustomed  to  attack  and  bite  mankind ;  which  said 
dog  afterwards,  and  while  the  defendant  so  kept  the  same 
as  aforesaid,  to  wit,  on,  etc.,  aforesaid,  did  there  attack  and 
bite  the  plaintiff,  and  did  then  and  there  greatly  lacerate, 
hurt  and  wound  one  of  the  legs  of  the  plaintiff,  and  thereby 
he,  the  plaintiff,  then  and  there  became  and  was  sick,  sore, 

(r)  31  Barb.  (N.  Y.)  385. 

{s)  II  Moor,  133;  3  Bing.  319,  S.  C. ;  2  Campb.  79;  I  C.  &  P.  636,  414; 
9  Bing.  457;  2  M.  &  Sc.  610,  S.  C.  ;  Chit.  Jr.  Cont.  2  ed.  385,  386. 

[t)  2  Campb.  79;  10  Ohio,  145;  13  Pet.  181  j  I  McLean,  540;  2  McLean, 
157;  II  Eng.  Com.  Law,  119. 


446  CASE. 

Declaration  for  malicious  proseculion,  etc. 

lame  and  disordered,  and  so  remained  for  the  space  of  six 
months  then  next  following,  during  all  which  time  he 
thereby"  suffered  great  pain,  and  was  thereby  then  and 
there  hindered  and  prevented  from  transacting  his  affairs 
and  business ;  and  also,  by  means  of  the  premises,  the 
plaintiff  was  thereby  then  and  there  put  to  great 
expense  and   charges,  in    the  whole  amounting  to  the   sum 

of dollars,  in  and  about  endeavoring  to  be  cured  of  the 

said  wounds,  sickness,  lameness  and  disorder  so  occasioned 
as  aforesaid,  and  has  been  and  is,  by  means  of  the  prem- 
ises, otherwise  greatly  injured  and  damnified.  {A  count 
may  be  inserted,  alleging  that  the  dog  "  was  of  a  ferocious 
and  malicious  disposition," — and  another  count  for  not 
keeping  the   dog  properly  secured  or  fed.)     To   the  damage 

of  the  plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

Tf  a  person  negligently  keeps  dogs,  or  other  animals,  which 
are  known  to  him  to  be  of  a  savage  and  ferocious  disposition, 
he.  is  accountable  for  all  injury  which  they  may  do  ;  and  it  is 
the  duty  of  the  owner  of  such  animals  to  secure  them  from 
doing  mischief  (;/) 

It  is  in  general  necessary,  in  an  action  for  an  injury  com- 
mitted by  a  doipestic  or  other  animal  not  naturally  inclined  to 
commit,  mischief,  to  allege  and  prove  that  the  owner  pre- 
viously had  notice  of  the  animal's  mischievous  propensity,  or 
that  the  injury  was  attributable  to  some  other  neglect  on  his 
part,  {v) 

No.  207.     For  malicious  prosecution. 

{Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff  now  is  a  good  and  honest  citizen  of  this  state,  and 
as  such  has  always  behaved  himself,  and  has  not  ever  been 
guilty,  or  until  the  time-  of  the  committing  of  the  several 
grievances  by  the  defendant,  as  hereinafter  mentioned, 
been  suspected  to  have  been  guilty  of  larceny,  or  of  any 
other    such    crime,    by  means   whereof  the   plaintiff,    before 


{u)   I  Scam.  338;  Id.  492;  22   111.    140;  30  Barb.  (N.  Y.)  147;  I.d.  Raym. 
no. 

{v)  I  Chit.  PI.  70. 


CASE.  447 

Declaration  for  malicious  prosecution. 

the  committing  of  the  said  grievances,  had  deservedly  ob- 
tained the  good  opinion  and  credit  of  all  his  neighbors,  and 
other  worthy  citizens  of  this  State ;  yet  the  defendant,  well 
knowing  the  premises,  but  contriving  and  maliciously  in- 
tending to  injure  the  plaintiff  in  his  aforesaid  good  name, 
fame  and  credit,  and  to  bring  him  into  public  scandal,  in- 
famy and  disgrace,  and  to  cause  the  plaintiff  to  be  impris- 
oned for  a  long  space  of  time,  and  thereby  to  impoverish, 
oppress  and  ruin  him,  on,  etc.,  in,  etc.,  went  and  appeared 
before  one  E.  P.,  Esq.,  then  and  there  being  one  of  the 
justices  of  the  peace  in  and  for  the  county  aforesaid,  and 
then  and  there,  before  the  said  E.  F.,  so  being  such  justice 
as  aforesaid,  falsely  and  maliciously,  and  without  any  rea- 
sonable or  probable  cause  whatsoever,  charged  the  plaintiff 
with  having  feloniously  stolen  a  certain  gold  zvatcJi  of  the 
defendant ;  and  upon  such  charge  the  defendant  falsely  and 
maliciously,  and  without  any  reasonable  or  probable  cause 
whatsoever,  caused  and  procured  the  said  E.  F.,  so  being 
such  justice  as  aforesaid,  to  make  and  grant  his  certain 
warrant,  under  his  hand,  for  the  apprehending  and  taking 
of  the  plaintiff,  and  for  bringing  the  plaintiff  before  him, 
the  said  E.  P.,  or  some  other  justice  of  the  peace  in  and 
for  the  said  county,  to  be  dealt  v/ith  according  to  law 
for  the  said  supposed  offense  ;  and  the  defendant,  under 
and  by  virtue  of  the  said  warrant,  afterwards,  to  wit,  on 
the  day  aforesaid,  there  wrongfully  and  unjustly,  and 
without  any  reasonable  or  probable  cause  whatsoever, 
caused  and  procured  the  plaintiff  to  be  arrested  by  his 
body,  and    to    be    imprisoned,    and    kept  in  prison  for  the 

space  of hours  then  next  following,  and  until  he,  the 

defendant,  afterwards,  to  wit,  on,  etc.,  there  falsely  and 
maliciously,  and  without  any  reasonable  or  probable  cause 
whatsoever,  caused  and  procured  the  plaintiff  to  be  carried 
in  custody  before  the  said  E.  E.,  so  being  such  justice  as 
aforesaid,  to  be  examined  before  the  said  justice,  touching 
the  said  supposed  offense  ;  which  said  justice  having  heard 
and  considered  all  that  the  defendant  could  say  or  allege 
against  the  plaintiff  touching  and  concerning  the  said  sup- 
posed offense,  tliereupon  then  and  there  adjudged  and 
determined  that  the  plaintiff  was  not  guilty  of  the  said 
supposed  offense,  and  then  and  there  caused  the  plaintiff 
to  be  discharged  out  of  custody,  fully  acquitted  and  dis- 
charged of  the    said    supposed  offense ;  and    the   defendant 


448  CASE. 

Declaration  for  malicious  prosecution. 

has  not  further  prosecuted  his  said  complaint,  but  has  aban- 
doned the  same,  and  the  said  complaint  and  prosecution  are 
wholly  ended  and  determined. 

{Second  cou)it.)  And  whereas  also  the  defendant,  fur- 
ther contriving  and  maliciously  and  wickedly  intending  as 
aforesaid,  on,  etc.,  aforesaid,  in,  etc.,  aforesaid,  falsely  and 
maliciously,  and  without  any  reasonable  or  probable  cause 
w^hatsoever,  charged  the  plaintiff,  with  having  committed  a 
certain  offense  punishable  by  law,  to  wit,  larceny  ;  and  upon 
such  last-mentioned  charge  the  defendant  then  and  there 
falsely  and  maliciously  caused  and  procured  the  plaintiff  to 
be  arrested  by  his  body,  and  to  be  imprisoned,  and  to  be  kept 

in  prison  for  the  space  of then  next  following;  at  the 

expiration  of  which  time  he,  the  plaintiff,  was  there  duly  dis- 
charged and  fully  acquitted  of  the  last-mentioned  supposed 
offense. 

{Averment  of  damage,  applicable  to  both  counts.)  By 
means  of  which  several  premises,  the  plaintiff  has  been 
and  is  greatly  injured  in  his  credit  and  reputation,  and 
brought  into  public  scandal,  infamy  and  disgrace,  with  and 
among  all  his  neighbors,  and  other  worthy  citizens  of  this 
State,  and  divers  of  those  neighbors  and  citizens,  to  whom 
his  innocence  in  the  premises  was  unknown,  have,  on 
occasion  of  the  premises,  suspected  and  believed,  and  still 
do  suspect  and  believe,  that  the  plaintiff  has  been  and  is 
guilty  of  larcc/iy ;  and  also  the  plaintiff  has,  by  means  of 
the  premises,  suftered  great  anxiety  and  pain  of  body  and 
mind,    and    has    been    obliged   to    lay   out,  and  has  laid  out, 

divers  large  sums  of  money,  amounting  to dollars,  in 

and  about  the  procuring  of  his  discharge  from  the  said  im- 
prisonment, and  the  defending  of  himself  in  the  premises, 
and  the  manifestation  of  his  innocence  in  that  behalf,  and 
has  been  greatly  hindered^  and  prevented,  by  reason  of  the 
premises,    from    following    and    transacting    his    affairs    and 

business,  for  the  space  of  ;  and  also,  by  reason  of  the 

premises,  the  plaintiff  has  been  and  is  otherwise  greatly  in- 
jured  in  his  credit  and  circumstances  :     To  the    damage   of 

the  plaintiff  of dollars,  and  therefore    he    brings   his 

suit,  etc. 

The  gist  of  this  action  is,  that  the  prosecutor  acted 
maliciously,    and    without   probable   cause.     If  there    is   no 


CASE.  449 

Malicious  prosecution — Observations. 

malice,  or  if  there  is  probable  cause,  the  action  will  not 
lie.  (tv) 

Probable  cause  is  defined  to  be  a  reasonable  ground  of 
suspicion,  supported  by  circumstances  sufficiently  strong 
in  themselves  to  warrant  a  cautious  man  in  the  belief  that 
the  person  accused  is  guilty  of  the  offense  charged,  {x) 

A  defendant  may  give  in  evidence  any  facts  which  show 
that  he  had  probable  cause  for  prosecuting,  and  that  he 
acted  in  good  faith  upon  the  ground  of  suspicion,  {y)  Good 
faith  is  always  an  important  subject  of  inquiry  in  an  action 
of  this  kind,  (z) 

To  enable  a  party  to  maintain  this  action,  it  is  not  essen- 
tial that  there  should  have  been  a  trial  by  jury,  and  a  ver- 
dict of  acquittal  rendered,  upon  the  charge  preferred  against 
him,  {a)  but  it  is  essential  to  aver  and  prove  that  the  charge 
upon  Avhich  the  plaintiff  was  arrested  has  been  legally  de- 
termined, in  his  favor,  either  by  a  trial  or  otherwise,  [b) 

And  where  the  plaintiff  showed  a  discharge  under  a 
habeas  cor^iis^  it  was  held  that  it  should  also  have  been 
made  to  appear  on  the  trial  that  the  state's  attorney  did 
not  send  the  case,  with  the  witnesses,  before  the  grand 
jury,  or,  if  he  did  so,  that  no  further  steps  had  been  taken 
by  the  people,  {c) 

If  an  attorney  commences  an  action  against  a  party  when 
he  knows  that  his  client  has  no  cause  of  action,  but  with 
some  sinister  view,  for  some  purpose  of  his  own,  he  will  be 
liable  therefor,  {d) 

Although  a  want  of  probable  cause  may  raise  the  pre- 
sumption of  malice,  the  existence  of  malice  is  not  sufficient 

(-</)  13  111.701;  I  Scam.  272;  18  111.  114;  35  111.  487;  85  111.  135;  77  111. 
32;  70  111.  408;  58  111.  366;  62  111.  261  ;  68  111.  1S5;   14  Bradw.  369. 

(jr)  17  in.  63;  35  111.  487;  50  111.  512;  2  Denio,  617;  20  Ohio,  119;  85 
III.  106;  70  111.  544;  77  111.  32;  83  111.  291. 

(  v)  I  Scim.  272;   17  III.  63;  2  Stark.  Ev.  916;   50  111.  337,  353. 

(s)  50  111.  353.     See  2  Bradw.  147,  551;  9  Bradw.  392. 

(<J)  42  111.  143. 

(6)  1  Som.  30;  20  111.  354;  43  111.  508;  76  111.  224;  18  Bradw.  284;  112 
111.  656. 

(r)  43  111.  508;  14  Bradw.  87;  77  111.  38,  603. 

(^)  13  111-  535- 
29 


450  CASE. 

Malicious  prosecution — Observations. 

to  raise  a  presumption  of  want  of  probable  cause.  The 
want  of  probable  cause  must  be  shown,  (e)  It  is  for  the 
plaintiff  to  show  that  the  defendant  had  not  probable  cause 
or  reasonable  ground  for  prosecuting.  Probable  cause  is 
a  mixed  question  of  law  and  fact,  (y) 

Previous  good  character  may  be  shown  as  one  evidence 
of  want  of  probable  cause,  and  bad  character  may  be  shown 
as  reason  for  probable  cause.  The  discharge  of  the  ac- 
cused by  the  examining  magistrate,  is  not  sufficient  evi- 
dence of  the  existence  of  want  of  probable  cause  ;  and  any 
fact,  such  as  the  admission  of  the  accused,  which  goes  to 
disprove  either  want  of  probable  cause  or  malice,  is  proper 
for  the  consideration  of  the  jury,  in  an  action  for  malicious 
prosecution,  (g) 

It  is  not  requisite  that  a  crime  shall  have  been  commit- 
ted before  probable  cause  for  an  arrest  can  exist.  An  act 
may  have  been  done  which  will  create  a  belief  of  crime, 
but  when  the  animus  is  shown  with  which  the  act  was  done, 
its  character  may  be  entirely  changed.  (/?) 

The  waiving  of  an  examination  before  a  magistrate,  and 
giving  bail  for  appearance  at  the  circuit  court,  is  not  such 
an  admission  of  guilt  as  will  preclude  the  plaintiff  from 
sustaining  an  action  for  a  malicious  prosecution.  A  dis- 
charge, by  the  prosecuting  attorney,  of  the  recognizance 
of  the  person  accused,  is  the  usual  mode  of  terminating  a 
prosecution  in  Illinois.  A  bill  need  not  be  ignored  before 
such  person  may  maintain  an  action  for  a  malicious  prose- 
cution. (?) 

The  defense  of  advice  of  counsel  is  available  only  when 
the  advice  was  given  upon  a  full  and  fair  statement  of  the 
facts  v/ithin  the  defendant's  knowledge.  That  a  defendant 
honestly  laid  all  the  facts  before  a  counsel  or  magistrate, 

{e)  23  111.  425  ;  85  111.  106  ;  77  111.  60J ;  77  111.  32;  65  111.  370 ;  6S  111.  1S5; 
5SIII.  366;  112  III.  656. 

(/)  23  111.  575  ;  13  111.  701  ;  83  111.  291,  548.  See  23  111.  425 ;  70  111.  544; 
81  111.  478;  85  111.  106.  '' 

(a-)  23  111.  575  ;  25  111.  339.  See  35  111.  4S7  ;  85  111.  135. 

(//)  26  111.  259;  85  111.  238.  See  77  111.  603 ;  72  111.  262. 

\i)   28  111.  30S. 


CASE.  ^  451 

Declaration  for  crim.  con. 

and  honestly  followed  their  advice,  though  wrong,  is  a  de- 
fense to  an  action  for  malicious  arrest.  {J) 

If  a  private  person  takes  a  part  in  an  unlawful  imprison- 
ment of  another  by  an  officer,  he  becomes  a  principal  in 
the  act,  and  is  liable;  but  if  he  merely  communicates  facts 
or  circumstances  of  suspicion  to  the  officer,  leaving  him  to 
act  on  his  own  judgment,  he  is  not  liable  at  all,  in  an  action 
either  for  malicious  prosecution,  or  false  imprisonment,  {k) 

The  mere  "knowledge  and  consent"  of  one  partner,  as 
to  an  arrest,  unaccompanied  with  his  advice  and  co-opera- 
tion, will  not  render  him  liable  with  his  copartner  in  an 
action  by  the  person  arrested.  (/) 

]Vo.  208.     1^07'  criminal  conversation. 

{Commence  as  in  A''o.  204,  ante.)  For  that  whereas  the 
defendant,  contriving  and  wickedly  intending  to  injure  the 
plaintiff,  and  to  deprive  him  of  the  societ}^  and  assistance  of 
E.  B.,  the  wife  of  the  plaintiff,  and  to  alienate  and  destroy 
her  affection  for  the  plaintiff,  on,  etc.,  and  on  divers  other 
days  between  that  day  and  the  commencement  of  this  suit, 
in,  etc.,  wrongfully  and  wickedly  debauched  and  carnally 
knew  the  said  E.  B.,  then  and  there  and  still  being  the 
wife  of  the  plaintiff;  and  thereby  the  affection  of  the  said 
E.  B.  for  the  plaintiff  was  then  and  there  alienated  and  de- 
stroyed, and  also,  by  means  of  the  premises,  the  plaintiff 
has  from  thence  hitherto  wholly  lost  and  been  deprived  of 
the  society  and  assistance  of  the  said  E.  B.,  his  said  wife, 
in  his  domestic  affairs,  which  the  plaintiff  during  all  that 
time  ought  to  have  had,  and  otherwise  might  and  would 

have  had  :     To  the  damage  of  the  plaintiff  of dollars, 

and  therefore  he  brings  his  suit,  etc. 

An  action  for  criminal  conversation  may  be  maintained 
either  in  case,  or  trespass,  (w)  but  it  is  in  effect  in  case.  («) 

( / )  7  Cal.  257 ;  35  111.  487  ;  50  111.  337  ;  85  111.  13S  ;  72  111.  262 ;  77  111.  164; 
172;  81  111.  478;  69  111.  376;  71  111.  475;  83  111.  291;  70  111.  544;  90  111.  74; 
82  111.  545  ;  83  111.  30. 

[k)   39  Barb.  (N.  Y.);  42  111.  143. 

(/)  42  III.  143  ;  115  111.  331  ;  69  111.  478. 

(m)   I  Chit.  PI.  128,  151  ;  41  111.  9. 

in)  6  East,  387  ;  7  Blackf.  578. 


452  CASE. 

Declaration  for  crim.  con. — Observations. 

A  recovery  against  one  party  in  an  action  for  crim.  con. 
is  no  bar  to  an  action  against  another  party  for  a  similai 
injury,  {o) 

In  such  action  the  plaintiff  must  prove  an  actual  mar- 
riage, i^-p)  A  marriage  license,  issued  in  the  state  of  Ten- 
nessee, with  a  certificate  indorsed  thereon  by  a  justice  of 
the  peace,  that  he  had  solemnized  the  marriage,  was  held 
to  have  been  properly  admitted  in  evidence,  the  official 
character  of  the  officer  granting  the  license,  and  also  that 
of  the  justice  of  the  peace,  being  certified  by  the  clerk, 
the  keeper  of  the  records,  under  his  official  seal,  and  the 
presiding  justice  having  certified  to  the  authority  and 
official  character  of  the  clerk,  {q) 

While  the  loss  of  service  of  the  wife  or  daughter  is  the 
alleged  ground  of  recovery,  the  injury  to  the  family  in  its 
reputation,  the  mental  anguish  and  distress  which  neces- 
sarily attend  the  transaction,  are  the  real  causes  for  the 
recovery.  And  though  the  husband  be  absent  from  home, 
lie  is  still  entitled  to  his  wife's  services  in  the  nurture  of  his 
children,  as  well  as  to  the  setting  of  a  virtuous  example  to 
them  by  her.  (r) 

In  an  action  for  criminal  conversation,  evidence  that  the 
plaintiff  is  ill  tempered,  and  that  before  the  illicit  inter- 
course charged  he  and  his  wife  lived  unhappily  together, 
and  occasionally  came  to  blows,  is  inadmissible  in  mitiga- 
tion of  damages;  (s)  nor  are  the  confessions  of  the  wife,  or 
the  opinions  of  witnesses,  as  to  her  fondness  for  the  defend- 
ant, admissible  in  evidence  against  him.  if) 

(o)  1  Campb.  415;  i  Chit.  PI.  77. 

{p)  4  Burr.  2057;  Phil,  on  Ev.  206;  Sehv.  N.  P.  14,  16. 

{q)  I  Scam.  513. 

(O  41  in.  9- 

(s)  7  Blackf.  57& 
(jT)  7  Ind.  590. 


CASE.  453 

Declaration  for  debauchinsr  daughter,  etc. 


No-  209.     For  debauching  ■plaintiff''s  daughter,  etc. 

{^Commence  as  in  jVo.  204,  ante.)  For  that  whereas  the 
defendant,  contriving  and  wrongfully  intending  to  injure 
the  plaintiff,  and  to  deprive  him  of  the  service  and  assist- 
ance of  E.  B.,  the  daughter  and  servant  of  the  plaintiff, 
on,  etc.,  and  on  divers  other  days  between  that  day  and 
the  commencement  of  this  suit,  in,  etc.,  debauched  and 
carnally  knew  the  said  E.  B.,  then  and  there,  and  from 
thence  hitherto,  being  the  daughter  and  servant  of  the 
plaintiff;  whereby  the  said  E.  B.  there  became  pregnant 
and  sick  with  child,  and  so  remained  for  the  space  of  nine 
months  then  next  following,  at  the  expiration  whereof,  to 
wit,  on,  etc.,  she  the  said  E.  B.  was  there  delivered  of  the 
child  with  which  she  was  so  pregnant  as  aforesaid  :  By 
means  of  which  said  several  premises,  she  the  said  E.  B., 
from  the  day  first  above  mentioned  hitherto,  there  became 
and  was  unable  to  do  or  perform  the  necessary  affairs  and 
business  of  the  plaintiff,  so  being  her  father  and  master  as 
aforesaid,  and  thereby  the  plaintiff,  during  all  that  time, 
lost  and  was  deprived  of  the  service  of  his  said  daughter 
and  servant ;  and  also,  by  means  of  the  several  premises,  the 
plaintiff'  was  obliged  to,  and  did  necessarily,  pay  out  divers 

sums  of  money,  in  the  whole  amounting  to dollars,  in 

and  about  the  nursing  and  taking  care  of  the  said  E.  B., 
his  said  daughter  and  servant,  and  in  and  about  the  delivery 

of  the  said  child  :     To  the  damage  of  the  plaintiff  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

An  action  on  the  case  may  be  sustained  by  ?i  father,  for 
the  seduction  of  his  daughter,  without  proving  any  actual 
loss  of  service ;  it  is  enough  that  the  daughter  be  a  minor, 
residing  with  her  father,  and  that  he  has  a  right  to  claim 
her  services,  [u)  Although  the  loss  of  service  is  the  al- 
leged ground  of  complaint,  the  injury  to  the  family  in  its 
reputation,   and   the   mental   anguish    and    distress   which 

(«)  21  Wend.  79;  8  Scrg.  &  Rawle,  36;  5  Harr.  &  Johns.  27;  S  Conn. 
130;  4  Cow.  412  ;  2  Wend.  459;  3  Scam.  373  ;  3  Gilm.  5S3  ;  5  Marring.  (Dei.) 
335;32Eng.  C.  L.  323,  615. 


454  CASE. 

For  debauching  daughter,  etc. — Observations. 

necessarily  attend  the  seduction,  are  the  real  grounds  of 
recovery,  (v) 

It  is  said,  however,  that  a  parent,  in  that  character 
merely,  can  not  support  an  action  for  debauching  or  beat- 
ing his  daughter,  and  that  such  an  action  is  only  sustain- 
able in  respect  to  the  supposed  loss  of  service,  some  slight 
evidence  of  which  must  in  general  be  adduced,  (w)  And 
the  action  may  be  sustained,  not  onl}?-  by  a  parent,  but  by 
a  guardian,  brother-in-law,  master  or  other  person,  stand- 
ing iu  loco  parentis  to  the  person  seduced ;  {x)  and  for  the 
seduction  of  an  adopted  daughter,  (jy) 

If  the  person  seduced  is  a  minor,  the  action  will  be  sus- 
tained, whether  she  resided  with  the  plaintiff  or  elsewhere 
at  the  time  of  the  seduction,  if  she  was  legally  under  the 
control  of,  or  might  be  required  to  perform  service  for  the 
plaintiff,  {z) 

Criminal  connection  may  take  place  betw'een  the  sexes 
without  seduction;  and  in  a  suit  by  the  father  for, the  de- 
bauching of  his  daughter,  if  seduction  be  not  proved, 
damages  should  not  be  given  for  it.  {a) 

The  daughter  is  a  good  witness  ;  ib)  and  she  can  not  be 
cross-examined  as  to  illicit  intercourse  with  other  men  ;  and 
evidence  of  a  promise  of  marriage  is  not  admissible ;  and 
the  plaintiff  can  not  call  witnesses  to  the  girl's  good  char- 
acter, unless  the  defendant  has  by  evidence  attacked  it.  {c) 

The  damages  are  not  to  be  measured  by  the  loss  of 
service,  but  may  be  exemplary ;  {d)  and  expenses  actually 

{v)  41  111.  9;  I  Chit.  PI.  167. 

(w)  5  East,  45;  5  Term,  360;  2  Term,  16S;  2  Starr,  493;  29  111.  460. 
(«)  21  III.  i6i ;  31  Barb.  (N.  Y.)  273. 
{y)  II  East,  23;  5  Sneed,  (Tenn.  146. 
{z)  21  111.  161 ;  8  Blackf.  113;  6  Ind.  262. 
(a)  8  Blackf.  123;  11  Ind.  466. 
(*)  2  Stra.  1064;  2  Chit.  PI.  11  Am.  ed.  644,  n. 

(c)  3  Campb.  519;   i  Campb.  463;   29  111.  460;   27  Conn.  319;   31   B:\rb. 
273;  13  Ind.  46;  5  Sneed,  5S0. 
((/)  21  111.  161 ;  3  Scam.  373. 


CASE.  455 

Declaration  for  deceit,  etc. 

paid  may  be  recovered,  (c)  A  verdict  for  eight  hundred 
dollars,  in  an  action  for  seduction,  is  not  excessive.  (_/") 

If  in  an  action  by  a  father  for  his  daughter's  seduc- 
tion, her  character  for  previous  chastity  is  successfully  im- 
peached, the  right  of  action  is  not'  defeated,  but  this  proof 
goes  only  in  mitigation  of  damages,  {g") 

No.  2IO.     For  deceit  in  the  zvarranty  of  a  horse. 

{^Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  on,  etc.,  in,  etc.,  bargained  with  the  defendant,  at 
his  request,  to  buy  of  him  a  certain  horse,  at  a  certain  price, 

to  wit,  the  sum  of dollars ;  and  the  defendant,  by  then 

and  there  falsely  and  fraudulently  warranting  the  said 
horse  to  be  sound,  and  quiet  in  harness,  then  and  there 

sold  the  said  horse  to  the  plaintiff  for  the  said  sum  of 

dollars,  which  was  then  and  there  paid  by  the  plaintiff 
to  the  defendant ;  whereas,  in  truth  and  in  fact,  the  said 
horse  was,  at  the  time  of  the  said  warranty  and  sale 
thereof,  unsound,  unsteady,  restive  and  ungovernable  in 
harness,  and  has  from  thence  hitherto  so  remained  :  And 
the  plaintiff  in  fact  says,  that  the  defendant,  by  means  of 
the  premises,  on  the  day  aforesaid,  there  falsely  and  fraud- 
ulently deceived  the  plaintiff  on  the  sale  of  the  said  horse 
as  aforesaid;  and  thereby  the  said  horse  afterwards,  to  wit, 
on  the  day  aforesaid,  not  only  became  of  no  use  or  value 
to  the  plaintiff,  but  also  then  and  there  greatly  kicked,  hurt 
and  spoiled   a  certain  other   horse  of  the   plaintiff,  of  the 

value  of  dollars  ;  and  thereby  also  the  plaintiff  was 

then  and  there  put  to  great  expense  of  his  moneys,  in  the 

whole  amounting  to  the  sum  of  dollars,  in  and  about 

the  feeding  and  taking  care  of,  and  selling  and  disposing 
of   the    first-mentioned    horse :     To   the    damage   of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

An  action  will  lie  for  deceit  and  warranty  in  the  sale  of  a 

(«r)  I  Stark.  C.  N   P.  287  ;  29  111.  460. 

(/)  29  III.  460. 

(^)  5  Snecd,  (Tenn.)  5S0. 


456  ■  CASE. 

Declaration  for  deceit,  etc. 

horse,  no  matter  what  the  consideration  to  be  paid  was,  or 
whether  it  was  paid  down  or  not.  {h) 

In  an  action  on  the  case  upon  an  express  zvarranty,  a 
scienter  need  not  be  alleged,  nor,  if  alleged,  need  it  be 
proved.  (/) 

See  the  observations  and  authorities  under  form  No.  39, 
ante,  in  assumpsit. 

JVo.  211.     J^or   deceit,    in    the   sale   of  -wool  deceitfully 
packed,  and  not  merchantable,  etc. 

{Commence  as  in  N'o.  204,  ante.)  For  that  whereas  the 
plaintiff,  on,  etc.,  in,  etc.,  bargained  with  the  defendant  to 

buy  of  him pounds  of  wool,  which  was  then  and  there 

packed  and  bound  up  into parcels,  in  the  form  and 

having  the  appearance  of  fleece  wool ;  and  the  defendant, 
by  then  and  there  warranting  the  said  wool,  and  every 
parcel  thereof,  to  be  fleece  wool,  and  to  be  packed  and 
bound  up  fairly  and  without  deceit,  and  to  be  good  and 
merchantable,  then  and  there  deceitfully  sold  the  same  to 

the  plaintifl'  for  the  sum  of dollars,  to  be  thereafter- 

wards  paid  by  the  plaintiff  for  the  same  :  And  the  plaindff 
avers,  that  at  the  time  and  place  of  the  said  sale  the  said 

wool  was  deceitfully  packed  and  bound  up,  and  that 

parcels  thereof  were  not  fleece  wool,  nor  good  nor  mer- 
chantable wool,  but  that  the  insides  of  those  parcels  were 
wool  of  a  much  less  value,  and  not  good  nor  merchantable 
wool ;  of  all  which  the  defendant  was  then  and  there  well 
knowing.  And  so  the  defendant  falsely  deceived  and  de- 
frauded ihe  plaintiff,  to  his  damage  of  dollars,  and 

therefore  he  brings  his  suit,  etc.  {j) 

An  action  on  the  case  for  a  deceit,  in  a  bargain,  is  main- 
tainable only  where  the  deception  complained  of  has  been 
intentional  on  the  part  of  the  seller,  and  the  purchaser  was 
actually  deceived,  and  has  sustained  a  damage  in  conse- 
quence of  it.  {k) 

{It)  28  111.  280.    See  37  111.  260. 
(/)  2  East,  446;  2  Chit.  PI.  681,  n. 
(y')  8  Went.  369;  Oliver's  Prec.  414. 

{k)  10  Mass.  197;  48  111.  182;  37  111.  260.  See  72  111.  390;  68  III.  604; 
81  111.  501,  529;  80  111.  35;  83  111.  25;  61  111.  372;  63  111.  29. 


CASE.  •  45-7 

Declaration  against  sheriff  for  taking  insufficient  replevin  bond. 


No.  212.     Against  sheriff  for  taking  insiifficient  sureties 

in  replevin. 

(^Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  on,  etc.,  in,  etc.,  was  possessed,  as  of  his  own 
property,   of  certain  chattels,  to  wit,   {Jiere   describe  the 

froferty^  of  the  value  of dollars  ;  and  the  defendant, 

on  the  day  aforesaid,  was  sheriff  of  the  said  county ;  and 
the  plaintiff,  so  of  the  said  goods  and  chattels  being  pos- 
sessed, and  the  defendant,  so  as  aforesaid  being  sherifi'  of 
the  said  county,  the  duty  of  his  said  office  not  considering, 
but  contriving  and  fraudulently  intending  the  plaintiff  of 
his  goods  and  chattels  aforesaid  to  deprive  and  defraud, 
on  the  day  aforesaid,  there  by  color  of  his  office  aforesaid, 
and  under  the  pretense  of  a  certain  writ  of  replevin,  to  him 
directed  and  delivered,  the  goods  and  chattels  aforesaid, 
there  being  found,  at  the  plaint  of  one  J.  R.,  pretending 
that  the  same  goods  and  chattels  were  the  property  of  him 
the  said  J.  R.,  and  that  the  plaintifl^  had  taken  the  said 
goods  and  chattels,  and  the  same  unjustly  detained,  against 
sureties  and  pledges,  the  goods  and  chattels  aforesaid  to  be 
replevied  from  the  possession  of  the  plaintiff,  and  to  be 
delivered  to  the  said  J.  R.,  did  cause  and  procure,  without 
sufficient  surety  and  pledges,  or  any  sufficient  surety  had 
or  taken,  to  prosecute  the  said  suit  and  plaint  of  him  the 
said  J.  R.,  against  the  plaintiff,  with  effect  and  without 
delay,  and  to  make  a  return  of  the  said  goods  and  chattels 
to  the  plaintiff',  if  a  return  thereof  should  be  adjudged 
to  him,  and  to  save  and  keep  harmless  the  said  sheriff'  in 
making  the  said  replevy,  as  according  to  the  statute  in  such 
case  made  and  provided,  and  the  duty  of  his  said  office, 
and  the  tenor  of  the  writ  aforesaid,  he  ought  to  have  done  : 
And  thereupon,  on  the  same  day  aforesaid,  the  plaintiff' 
was  there  summoned  into  the  Circuit  Court  of  the  said 
county,  to  appear  on,  etc.,  to  answer  the  said  J.  R.  of  a 
plea  wherefore  he,  the  plaintiff,  took  the  goods  and  chirttels 
aforesaid  ;  and  thereupon  it  was  in  such  manner  proceeded, 
that  by  the  said  court  it  was  considered  that  the  plaintiff 
should  have  a  return  of  the  said  goods  and  chattels,  to  be 
delivered  to  him  ;  which  said  judgment  remains  in  full  tbrce 
and  effect:  And  the  plaintiff  in  fact  says,  that  the  goods 
and  cliattels  aforesaid,  to  the  said  J.  R.  by  reason  of  the 
said  replevin  so  as  aforesaid  delivered,  to  places  obscure 


458  CASE. 

Declaration  for  immoderate  use  of  horse,  etc. 

and  unknown  were  eloigned,  whereby  they  can  not  be 
returned  or  dehvered  to  the  plaintiff;  and  the  plaintiff  the 
goods  and  chattels  aforesaid,  by  the  occasion  aforesaid,  has 
wholl}'  lost,  and  is  without  remed}'  :     To  the  damage  of 

the  plaintiff  of  dollars,  and  therefore  he  brings  hi? 

suit,  etc.  [k) 

If  a  sheriff  fails  to  take  a  bond  from  the  plaintiff,  before 
replevying  the  property,  or  returns  an  insufficient  bond,  he 
is  liable  to  pay  to  the  party  injured  all  damages  which  he 
ma}?^  sustain  in  consequence  of  such  neglect,  to  be  recov- 
ered by  an  action  on  the  case  in  the  Circuit  Court.  (/) 

See  form  No.  159,  anU,  and  the  cases  there  cited. 

7\'^<9.   213.     J^or  overloading  and  immoderately  driving  a 

horse. 

{^Commence  as  in  JVo.  204,  ante.)  For  that  whereas  the 
plaintiff,  on,  etc.,  in,  etc.,  had  delivered  to  the  defendant  a 

certain  horse  of  the  plaintiff,  of  the  value  of dollars, 

to  drive  from,  etc.,  to,  etc.  ;  but  the  defendant,  on  the  same 
day,  in  the  county  of aforesaid,  so  grievously  over- 
loaded, and  so  immoderately  and  with  such  unreasonable 
swiftness  drove  the  said  horse,  that  the  said  horse  there- 
afterwards,  on  the  same  da}^  by  means  of  such  immod- 
erate overloading  and  unreasonable  driving,  there  died : 
To  the  damage  of  the  plaintiff  of  dollars,  and  there- 
fore he  brings  his  suit,  etc. 

Where  a  person  hires  a  horse,  he  is  bound  to  use  it  with 
moderation,  and  if  he  does  not,  and  an  injury  is  occasioned, 
he  will  be  liable  in  case  therefor.  (;;/) 

A  gratuitous  bailee  of  a  horse — a  person  who  borrows 
the  horse  of  another  for  use,  without  compensation — is 
bound  to  use  extraordinary  care.  The  expense  incurred 
by  the  borrower,  for  the  keeping  of  the  horse,  is  not  such 


{k)  14  Serg.  &  R.  23. 

(/)  Rev.  Stat.  (1874)  852;   Rev.  Stat.  (1S77J  Sio;  89  111.  159;  S5  111.  248. 
(w)  I  Cowen,  109.     See  37  111.  250. 


CASE.  459 

Declaration  against  physician  for  malpractice. 

a  compensation  to  the  lender  as  changes  the  gratuitous  char- 
acter of  the  bailment,  {n) 

See  the  form  of  a  declaration  in  assumpsit,  ante,  No.  47, 
and  the  authorities  there  cited. 

IVo.  214.     Against  a  physician,  fo?'  neglect,  etc.,  in  treat- 
ment of  plaintiff . 

{Commencement  as  in  No.  204,  ante.)  For  that  where- 
as the  defendant,  before  and  at  the  time  of  committing 
the  grievances  hereinafter  mentioned,  in  the  county  afore- 
said, was  exercising  the  profession  of  a  physician  ;  and  the 
plaintiff,  on,  etc.,  and  while  the  defendant  was  so  exer- 
cising such  profession,  there  retained  and  employed  the  de- 
fendant, as  such  physician,  for  reward,  to  attend  and  treat 
the  plaindff  lor  the  cure  of  the  plaintiff  of  a  certain  sick- 
ness and  malady  under  which  he  was  then  and  there  suffer- 
ing ;  and  thereupon  the  defendant,  as  such  physician,  then 
and  there  accepted  such  retainer  and  employment,  and 
entered  upon  the  treatment  of  the  plaintiff  in  pursuance 

thereof,  and  continued  such  treatment  for  the  space  of 

days  then  next  following  :  Yet  the  defendant,  not  regard- 
ing his  duty  as  such  physician,  during  that  time  there  so 
unskillfully  and  negligently  conducted  himself  in  that  be- 
half, that  by  and  through  his  want  of  skill  and  care  the 
said  sickness  and  malady  of  the  plaintiff  then  and  there 
became  greatly  increased  and  aggravated,  and  the  plaintiff 
then  and  there  underwent  great  and  unnecessary  anguish 
and  discress,  and  became  and  was  greatly  disordered,  re- 
duced and  weakened  in  bod3s  and  so  remained  for  a  long 
time,  to  wit,  hitherto,  during  all  which  time  the  plaintiff 
suffered  great  pain,  and  was  hindered  and  prevented  from 
transacting  his  affairs  and  business  ;  and  also,  by  means 
of  the  premises,  the  plaintilf  lias  been  obliged  to  pay,  and 
has  paid,  to  divers  other  physicians,  divers  sums  of  money, 

amounting  to dollars,  in  and  about  endeavoiing  to  ho. 

cured  of  his  said  sickness,  malady  and  disorder :     To  the 

damage  of  the  plaintiff  of  dollars,  and  therefore  he 

brings  his  suit,  etc.  io) 

C»)  37111-  250;  see  21  111.  265. 

{OS  7  Ohio,  (part  2)  123;  2  Wils.  359;  i  II.  Bla.  15S;  S  East,  348 ;  32  Eng, 
C.  L.  444. 


460  CASE. 

Declaration  against  an  attorney  for  negligence. 


When  a  person  assumes  the  profession  of  a  physician 
and  surgeon,  the  law  holds  him  responsible  for  any  injury 
from  a  want  of  reasonable  care,  skill  and  diligence  in  his 
practice,  unless  the  services  rendered  were  gratuitous,  in 
which  case  gross  negligence  will  alcne  make  him  liable.  (^) 
But  the  highest  degree  of  care  and  skill  is  not  required,  {g) 
Where  he  does  not  profess  to  be  a  physician,  however, 
nor  to  practice  as  such,  and  is  merely  asked  his  advice  as 
a  friend  or  neighbor,  he  does  not  incur  any  professional  re- 
sponsibility, (r) 

JVo.  215.     Against  an  attorney, /"or  negligence  in  prose- 
cuting an  actio7i. 

(  Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
defendant,  before  and  at  the  time  of  committing  the  grier- 
ances  hereinafter  mentioned,  in  the  county  aforesaid,  was 
following  the  profession  of  an  attorney  at  law ;  and  the 
plaintiff  on,  etc.,  and  while  the  defendant  was  so  following 
such  profession,  there  retained  and  employed  the  defend- 
ant, as  such  attorney,  for  reward,  to  prosecute  and  conduct 

a  certain  action  of  assumpsit,  in  the Court  of  the  said 

county,  at  the  term  then  next  following,  at  the  suit  of 

the  plaintiff,  against  one  E.  F.,  for  the  recover}'  of  a  certain 

sum  of  money,  to  wit,  dollars,  which  the  plaintiff 

then  claimed  to  be  due  to  him  from  the  said  E.  F.  ;  and 
thereupon  the  defendant,  on,  etc.,  aforesaid,  there  accepted 
such  retainer,  and  entered  upon  such  employment :  Yet 
the  defendant,  not  regarding  his  duty  or  his  said  retainer 
and  employment,  did  not  prosecute  and  conduct  or  manage 
the  said  action  with  due  and  proper  care,  skill  and  dili- 
gence, but  on  the  contrary  thereof  prosecuted,  conducted  and 
managed  the  same  in  such  a  careless,  unskillful  and  im- 
proper manner,  and  with  such  want  of  due  and  proper  care, 
skill  and  diligence  in  that  behalf,  that  the  said  action  after- 
wards, to  wit,  on,  etc.,  there  became  and  was  wholly  abor- 
tive and  of  no  avail,  and  the  plaintiff  then  and  there  was 
forced  to  be,  and  he  was  then  and  there  nonsuited  ;  (or  if 

(  f)  23  III.  385  ;  40  111.  209. 

\q)  118  111.  534  ;  40  111.  210  ;  2  Bradw.  484;  85  111    194  ;  82  111.  379;  74  IH- 
232;  70  111.  162;  Hilliard  on  Torts,  225;  9  Bradw.  490. 
(r)  Ibid.     See  2  Bradw.  484;  85  111.  194;  96  111.  214. 


CASE.  461 

Declaration  against  common  carrier,  etc. 

a  verdict  was  fotmd  against  him,  or  otherwise,  state  the 
fact  accordingly, )\\h.Qxe.hy  the  plaintiff  was  and  has  been 
hitherto  not  only  hindered  and  prevented  from  recovering 
his  said  claim  from  the  said  E.  F.,  but  is  likely  to  lose  the 
same  ;  and  also  has  incurred  and  paid  to  the  said  E.  F.  a 

large  sum  of  money,  to  wit,  dollars,  for  his  costs  and 

charges  in  and  about  his  defense  to  the  said  action  ;  and  has 
also  incurred  the  loss  of  and  paid  a  large  sum  of  money, 

to  wit, dollars,  for  the  plaintiff's  costs  and  charges  in 

and  about  prosecuting  and  conducting  the  said  action  :     To 

the  damage  of  the  plaintiff  of  dollars,  and  therefore 

he  brings  his  suit,  etc.  (5) 

An  attorney  at  law  who  assumes  to  exercise  the  duties 
of  his  office  in  behalf  of  another,  for  hire  and  reward,  will 
be  held  to  employ  in  his  undertaking  a  reasonable  degree 
of  care  and  skill ;  and  if  injury  results  to  the  client  for  the 
want  of  such  a  degree  of  reasonable  care  and  skill,  the 
attorney  will  be  liable  to  the  extent  of  the  injury  sustained.  (/) 

The  question  of  negligence  is  one  for  the  opinion  of  the 
jury,  {u) 

If  diligence  would  have  been  ineffectual,  the  defendant 
must  prove  it.  {v)  In  such  case  he  will  be  only  liable  for 
nominal  damages,  [w) 

For  lurther  observations  upon  the  liability  of  attorneys, 
see  chapter  XIX,  post. 

JVo.  216.     Against  railroad  company,  as  common  carrier^ 
for  not  delivering  goods. 

(  Commence  as  in  No.  197,  ante.)  For  that  whereas  the 
defendant,  on,  etc.,  in,  etc.,  was  possessed  of  and  using  and 
operating  a  certain  railroad,  and  was  a  common  carrier  of 

(j)  2  Chit  PI.  669,  (11  Am.  ed.) 

(/)  55  111.  151 ;  2  Watts  &  Sargent,  lo^;  3  How.  (Miss.)  314;  8  Mass.  51 ; 

Chit,  on  Cont.  166.     See  79  111.  193;  55  III.  151  ;  69  111.  38. 
(,«)  4  B.  &  A.  202. 

(w)  2  Chit.  Rep.  311.  bee  1  Campb.  176;  2  Salk.  515;  Peake's  Rep.  163. 
(w)  5  S.&  M.  268;  21  Ala.  647. 


462  CASE. 

Declaration  against  seller  of  liquor,  etc. 

goods  and  chattels  thereon  for  hire,  to  wit,  from  to 

;  and  the  plaintiff  on,  etc.,  aforesaid,  at,  etc.,  afore- 
said, caused  to  be  delivered  to  the  defendant,  and  the  de- 
fendant then  and  there  received  of  the  plaintiff, boxes^ 

containing  divers  goods,  to  wit,  {specify  the  articles)  of  the 
plaintiff,  of  the  value  of dollars,  to.be  safely  and  se- 
curely carried  by  the  defendant,  from aforesaid  to 

aforesaid,  and  at  the  last-named  place  to  be  safely  and  se- 
curely delivered  {or\pr  'to',«5  the  case  may  be,)  the  plaint- 
iff, for  certain  reward  to  the  defendant  in  that  behalf:  Yet 
the  defendant  did  not  safely  and  securely  carry  the  said 

boxes  and  their  contents  aforesaid  from aforesaid  to 

aforesaid,  and  at  the  last-named  place  safely  and  se- 
curely deliver  the  same  for  {or  'to',  as  the  case  may  be,)  the 
plaintiff;  but  on  the  contrary  thereof,  by  the  negligence  of 
the  defendant  and  its  servants  in  that  behalf,  the  said  boxes 
and  their  contents  aforesaid,  afterwards,  to  wit,  on  the  day 
aforesaid,  in,  etc.,  aforesaid,  became  and  were  wholly  lost 
to  the  plaintiff:  To  the  damage  of  the  plaintiff  of dol- 
lars, and  therefore  he  brings  his  suit,  etc. 

A  second  count. for  not  carr3nng  within  a  reasonable  time, 
may  be  framed  from  the  second  count  in  No.  48,  ante,  page 
125. 

See  observations  upon  the  liability  of  common  carriers, 
following  precedent  No.  48,  ante,  pages  126-7,  and  the 
cases  there  cited. 

Xo.  217.  Against  a  seller  of  intoxicating  liquors,  on  the 
statute,  {x)  Action  by  the  widow  of  a  physician,  for 
causing  his  habitual  intoxication,  and  thereby  his  death, 
and  the  loss  of  her  means  of  suf-port,  etc. 

(  Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  before  and  on,  etc.,  in,  etc.,  was  the  wife  of  one 
G.  B.,  and  so  continued  to  be  until  the  time  of  his  death  as 
hereinafter  mentioned;  and  the  said  G.  B.,  on  the  day 
aforesaid,  and  for  a  long  time  next  preceding  that  day, 
there  exercised  the  profession  of  a  -physician,  and  derived 
therefrom  a  large  yearly  income,  to  wit,  the  yearly  sum  of 


{x)  Rev.  Stat.  (1877)  433  ;  Rev.  Stat.  (1874)  439- 


CASE.  463 

Declaration  against  seller  of  liquor,  etc. 

'  —  thousand  dollars,  and  was  also  possessed  of  moneys 
and  property  i^mounting  in  value  to  a  large  sum  of  money, 

to  wit,  the  sum  of  thousand  dollars,  and  by  means 

thereof  was  enabled  to  and  did  provide  a  comfortable  and 
liberal  maintenance  as  well  for  himself  as  for  the  plaintiff 
and  for  one  H.  B.,  then  and  still  being  the  minor  son  of  the 
said  G.  B.  and  the  plaintiff:  And  on  the  day  aforesaid,  and 
on  divers  other  da3's  between  that  day  and  the  death  of  the 
said  G.  B.,  the  defendant  there  sold  and  gave  intoxicating 
liquors  to  him  the  said  G.  B.,  and  thereby  caused  him.  the 
said  G.  B.  to  become,  and  he  during  that  time  there  was, 
habitually  intoxicated  ;  and  so  being  habitually  intoxicated, 
he  the  said  G.  B.,  in  consequence  thereof,  during  the  time 
last  aforesaid  there  wasted  and  squandered  all  his  moneys 
and  propert3s  and  became  greatly  impoverished,  reduced, 
degraded  and  wholly  ruined,  as  well  in  his  mind  and  body 
as  in  his  estate,  and  neglected  and  ceased  to  exercise  or  at- 
tend to  the  duties  of  his  said  profession,  or  any  other  call- 
ing or  business  whatsoever,  or  in  any  manner  to  earn  or  pro- 
vide a  livelihood  for  himself  or  the  plaintiff,  or  their  said 
minor  son  ;  [and  also  thereby  the  plaintiff,  during  that  time, 
was  there  compelled  to  and  did  lay  out  divers  sums  -of 

money,  amounting  to  a  large  sum,  to  wit, dollars,  of 

her  own  moneys  and  earnings,  in  and  about  the  care,  nurs- 
ing and  maintenance  of  the  said  G.  B.,  and  tor  medicines 
and  the  services  of  physicians  for  him,  and  in  and  about 
t!ie  maintenance  of  the  plaintiff  and  her  said  minor  son  ;] 
and  in  further  consequence  of  the  habitual  intoxication  of 
the  said  G.  B.  as  aforesaid,  so  by  the  defendant  caused  as 
aforesaid,  he  the  said  G.  B.,  on,  etc.,  there  died  :  By  means 
ol  which  premises  the  plaintitT  has  been  and  is  injured  in 
her  [property  and]  means  of  support,  and  deprived  of  th6 
same,  [and  has  been  and  is  compelled  to  support  herself 
and  her  said  minor  son  by  her  own  labor.]  Wherefore  the 
plaintiff  says  that  she  is  injured,  and  has  sustained  damage 

to  the  amount  of  dollars  ;  and  by  force  of  the  statute 

in  such  case  made  and  provided,  an  action  has  accrue'-'  li. 
her  to  demand  and  have  of  the  defendant  that  sum  o  raonrv  ; 
and  therefore  the  plaintiff  brings  her  suit,  etc. 


464  CASE. 

Declaration  against  seller  of  liquor,  etc. 


No.  218.  Against  a  seller  of  intoxicating  liquors.,  and 
his  landlord.,  on  the  statute.,  (j)  for  injury  done  by  an 
intoxicated  -person. 

{Title  of  court.,  etc.,  as  in  No.  197,  ante.)  A.  B., 
plaintiff,  by  G.  H.,  his  attorney,  complains  of  C.  D.  and 
E.  F.,  defendants,  of  a  plea  of  trespass  on  the  case:  For 
that  whereas  the  said  C.  D.,  on,  etc.,  in,  etc.,  in  a  certain 
building  and  premises  by  him  then  and  there  occupied,  did 
sell  and  give  intoxicating  liquors  to  one  L.  M.,  and  thereby 
caused  the  intoxication  of  him  the  said  L.  M.  ;  and  the  said 
E.  F.,  before  that  time  and  then,  being  the  owner  of  the 
.'(Said  building  and  premises,  and  having  knowledge  that  in- 
toxicating liquors  were  to  be  sold  therein,  there  permitted 
the  occupation  of  the  said  building  and  premises  by  the  said 
C.  D.  :  And  thereupon  the  said  L.  M.,  so  being  intoxicated, 
and  in  consequence  thereof,  then  and  there  {here  set  forth 
the  zvrongful  act  done  by  the  intoxicated  -person.,  and  the 
consequent  damage.,  the  same  as  in  an  action  against  such 
person).     Wherefore  the  plaintiff  says  that  he  is  injured, 

and  has  sustained  damage  to  the  amount  of dollars  ; 

and  by  force  of  the  statute  in  such  case  made  and  provided, 
an  action  has  accrued  to  him  to  demand  and  have  of  the 
defendants  that  sum  of  money  ;  and  therefore  the  plaintiff 
brings  his  suit,  etc. 

Section  9  of  the  "  act  to  provide  for  the  licensing  of,  and 
against  the  evils  arising  from  the  sale  of  intoxicating  liquors, 
is  as  follows : 

"Every  husband,  wife,  child,  parent,  guardian,  em- 
ployer or  other  person,  who  shall  be  injured  in  person  or 
property,  or  means  of  support,  by  any  intoxicated  person, 
or  in  consequence  of  the  intoxication,  habitual  or  otherwise, 
of  any  person,  shall  have  a  right  of  action  in  his  or  her 
own  name,  severally  or  jointly,  against  any  person  or  per- 
sons who  shall,  by  selling  or  giving  intoxicating  liquors, 
have  caused  the  intoxication,  in  whole  or  in  part,  of  such 
person  or  persons  ;  and  any  person  or  persons  owning, 
renting,  leasing  or  permitting  the  occupation  of  any  build- 

^y)  Hev.   Stat.  (1874)439;  Rev.  Stat.  (1877)  433- 


CASE.  465 

Against  seller  of  liquors — Observations,  etc. 

ing  or  premises,  and  having  knowledge  that  intoxicating 
hquors  are  to  be  sold  therein,  or  who,  having  leased  the 
same  for  other  purposes,  shall  knowingly  permit  therein 
the  sale  of  any  intoxicating  liquors  that  have  caused,  in 
whole  or  in  part,  the  intoxication  of  any  person,  shall  be 
liable,  severally  or  jointly,  with  the  person  or  persons  sell- 
ing or  giving  intoxicating  liquors  aforesaid,  for  all  damages 
sustained,  and  for  exemplary  damages ;  and  a  married 
woman  shall  have  the  same  right  to  bring  suits,  and  to  con- 
trol the  same  and  the  amount  recovered,  as  a  feme  sole  ; 
and  all  damages  recovered  by  a  minor,  under  this  act,  shall 
be  paid  either  to  such  minor,  or  to  his  or  her  parent,  guard- 
ian, or  next  friend,  as  the  court  shall  direct;  and  the  un- 
lawful sale  or  giving  away  of  intoxicating  liquors  shill 
work  a  forfeiture  of  all  rights  of  the  lessee  or  tenant,  un- 
der any  lease  or  contract  of  rent  upon  the  premises  where 
such  unlawful  sale  or  giving  away  shall  take  place  ;  and 
all  suits  for  damages  under  this  act  may  be  by  any  appro- 
priate action  in  any  of  the  courts  of  this  state  having  com- 
petent I'urisdiction."  (z) 

This  statute  is  held  to  be  highly  penal  in  its  character,  pro- 
viding a  right  of  action  unknown  to  the  common  law,  and 
should  receive  a  strict  construction. 

An  action  by  a  wife  for  injuries  to  her  person,  occasioned 
by  the  drunkenness  of  the  husband,  can  not  be  sustained 
without  showing  an  assault,  or  some  actual  violence  or 
some  physical  injury  to  the  person  or  the  health.  Mental 
anguish,  disgrace,  or  loss  of  society  or  companionship  con- 
stitute no  element  for  the  recovery  of  damages  under  the 
statute. 

Where  the  action  is  brought  for  injury  to  a  wife's  means  of 
support^  it  is  not  necessary  to  show  that  she  has  been  at  any 
time,  in  whole  or  in  part,  with  out  present  means  of  support. 

{z)  I  Starr  &  Curtis'  An.  Stat.  971 ;  Rev.  Stat.  (1877)  433.  See  86  111.  106; 
88  111.  245;  15  Bradw.  164;  16  Bradw.  641,  659;  106  111.  263;  91  111.  182. 

30 


466  CASE 

Action  for  slander — Where  it  lies,  etc. 

It  is  enough  that  the  means  of  her  future  support  have  been 
cut  off,  or  diminish  below  what  is  reasonable  and  com- 
petent for  a  person  in  her  station  in  life,  and  below  what 
they  would  otherwise  have  been. 

The  rule  of  damages,  in  such  case,  should  be,  not  the 
amount  of  loss  occasioned  to  the  husband's  estate,  but  the 
diminution,  if  any,  thereby  resulting  to  the  wife's  means  of 
present  and  future  support.  And  the  liability  of  the 
defendant,  in  such  cases,  is  not  confined  to  injuries  resulting 
from  drunkenness  immediately,  and  during  its  continuance, 
out  extends  to  injuries  resulting  from  insanity,  sickness  or 
nability  induced  by  intoxication.  (/) 

Exemplary  damages  can  not  be  awarded  as  a  punishment  in 
this  action,  for  the  reason  the  statute  provides  that  the  public 
shall  avail  itself  of  its  punitive  provisions,  which  are  fines 
and  imprisonment  in  the  county  jail ;  the  penalty  of  impris- 
onment to  be  enforced  by  indictment,  {u) 

ACTION  ON  THE  CASE  FOR  SLANDER,  ETC. 

Slander  is  the  defaming  of  a  man  in  his  reputation,  or 
rendering  him  an  object  of  ridicule,  by  words  spoken  or 
written,  from  whence  an  injury  in  character,  or  property, 
or  feeling,  arises  or  may  arise  to  him.  Written  or  printed 
slanders  are  libels. 

With  respect  to  verbal  slander,  actionable  words  are  of 
two  kinds  :  Jirs^,  those  actionable  in  themselves,  without 
proof  of  special  damage  ;  secondly,  those  actionable  only 
in  respect  to  some  actual  consequential  damage. 

(t)   21  Ohio  St.  R.  191 ;  76  111.  331 ;  83  III.  56 ;  73  111.  187 ;  81  111,  213. 

(m)  See  70  111.  496  ;  80  111.  283;  77  111.  109,  381,  388,  593  ;  71  111.  241,  273, 
632;  72  111.  540,  133;  73  111.  187,  561;  81  III.  434;  76  111.  222;  13  Bradw. 
47,  474;  84  111.  511;  91  111.  182. 


CASK.  467 

Action  for  slander — Where  it  lies,  etc. 

Words  of  the  first  description  must  impute  the  guilt  of 
some  offense  for  which  the  party,  if  guiky,  might  be  in- 
dicted and  punished  by  the  criminal  courts  ;  such  as  call- 
ing a  person  a  traitor,  thief,  or  highwayman,  or  to  say  that 
he  is  guilty  of  perjury,  forgery,  murder,  larceny,  adulter3% 
fornication,  and  the  like  ;  and  although  the  imputation  of 
guilt  may  be  general,  without  stating  the  particulars  of  the 
pretended  crime,  it  is  actionable,  (a) 

Words  charging  a  person  with  having  a  disease,  or  dis- 
temper, which  renders  him  unfit  for  society,  are  actionable 
in  themselves,  {b)  An  action  can  therefore  be  sustained 
for  calling  a  man  a  leper ;  (c)  but  charging  another  with 
having  had  a  contagious  disease  is  not  actionable,  as  he 
will  not  on  that  account  be  excluded  from  society,  {d)  A 
charge  which  renders  a  man  ridiculous,  and  impairs  his 
enjoyment  of  general  society,  and  injures  those  imperfect 
rights  of  friendly  intercourse  and  mutual  benevolence  which 
man  has  with  respect  to  man,  is  also  actionable,  (e) 

To  charge  unfitness  in  an  officer,  who  holds  an  office  to 
which  profit  or  emolument  is  attached,  either  in  respect  to 
morals  or  inability  to  discharge  the  rluties  of  the  office,  is 
actionable.  {/) 

To  impute  a  want  of  integrity,  or  capacity,  whether 
mental  or  pecuniary,  in  the  conduct  of  a  profession,  trade 
or  business  in  which  the  party  is  engaged,  is  actionable ;  {g) 
as  to  accuse  an  attorney  or  artist  of  inability,  inattention  or 

{a I  6  Term,  674;  3  Wils.  1S6;  2  Vent.  266;  3  Serg.  &  Rawle,  255;  7  Serg. 
&  Rawle,  451 ;  i  Binn.  452  ;  5  Binn.  21S;  3  Serg.  &  Rawle,  261 ;  4  Yeates, 
423;  10  Serg.  &  Rawle,  44 ;  8  Mass.  248;  13  Johns.  124,275;  32  Penn.  S. 
273;  36  Barb.  (N.  Y.)  438;  48  HI-  385- 

(3)  Bac.  Abr.  Slander,  b.  2. 

\c)  Cro.  Jac.  144;  Stark,  on  Slander,  97 

(fif)  2  Term,  473;  2  Str.  1189;  Bac.  Abr.   tit.  Slan.,  b.  2. 

(c)  Holt  on  Libels,  221  ;  22  Barb.  396. 

(/)  I  Salk.  695,  69S;  Roll.  Abr.  65;  2  Esp.  500;  5  Co.  125;  4  Co.  16  a; 
I  Str.  617;  Holt  on  Libel,  207;  Stark,  on  Slander,  100. 

(g)  23  Conn.  86;  7  Conn  257;  33  Barb.  (N.  Y.)  615  ;  52  111.  236;  79  111.  45; 
81  111.  77  ;  86  111.  147  ;  10  Biadw.  570. 


468  CASE. 

Action  for  slander — Where  it  lies,  etc. 


want  of  integrity,  {h)  or  charging  a  clergyman  with  being 
a  drunkard.  (?) 

Of  the  second  class  are  words  which  are  actionable  only 
in  respect  of  special  damage  sustained  by  the  person  slan- 
dered. Though  the  law  will  not  permit  in  these  cases  the 
inference  of  damage,  yet  when  the  damage  has  actually 
been  sustained,  the  person  aggrieved  may  support  an  ac- 
tion for  the  publication  of  an  untruth,  {J)  unless  the  words 
are  spoken  in  the  assertion  of  a  supposed  claim  ;  {k)  but  if 
maliciously  spoken,  an  action  lies.  (/) 

The  charge  must  be  false,  {m)  The  falsity  of  the 
charge  is  to  be  implied  until  the  contrary  is  shown.  («) 

The  slander  must,  of  course,  be  published,  that  is,  com- 
municated to  a  third  person  ;  and  if  verbal,  then  in  a  lan- 
guage which  he  understands,  otherwise  the  plaintiff's  rep- 
utation is  not  impaired,  {o) 

To  render  words  actionable,  they  must  be  uttered  with- 
out legal  occasion.  On  some  occasions  it  is  justifiable  to 
utter  slander  of  another ;  in  others  it  is  excusable,  if  done 
without  express  malice.  {^)  It  is  justifiable  for  an  attorney 
to  use  scandalizing  expressions  in  support  of  his  client's 
cause,  and  pertinent  thereto,  {q)  Members  of  Congress 
and  other  legislative  assemblies  can  not  be  called  to  account 
for  anything  said  in  debate. 

Malice  is  essential  to  the  support  of  an  action  for  slander- 

{k)  3  Wils.  187;  2  Bl.  750. 

(/)  I  Binn.  178. 

(_/■)  I  Lev.  53;  I  Sid.  79,  So;  3  Wood.  210;  2  Leon,  ni ;  48  111.  385. 

[k)  Com.  Dig.,  Ac.  on  Case  forDef.  D.  30. 

(/)  I  Roll.  Abr.  36;  1  Saund.  243;  8  Term,  130;  8  East,  i. 

Im)  5  Co.  125,  126;  Hob.  253;  33  Vt.  182. 

(w)  2  East,  436;  I  Saund.  242. 

(o)   109  111.  26;  I  Saund.  242,  n.  3  ;  13  Gray,  304. 

(/)  Bac.  Abr.  Slander,  D.  4;  Roll.  Ab.  87;   I  Vin.  Abr.  540;   13  Wis.  193. 

(^)  I  M.  &  S.  280;  I  Holt,  531 ;  I  B.  &  A.  232;  2  Serg.  &  Rawle,  469;  i 
Binn.  178  ;  4  Yeates,  322;  I  P.  A.  Browne,  40;  I  Vermont,  536;  2  Jonis,  Law, 
(N.  C.)  175  ;  5  Hurl.  &  Nor.  792. 


CASE.  469 

Action  for  slander — Where  it  lies,  etc. 

ous  words,  but  malice  is  in  general  to  be  presumed  until 
the  contrary  is  proved,  (r) 

The  testimony  of  the  hearers,  as  to  the  sense  in  which 
they  understood  the  words  spoken,  is  admissible.  (5) 

In  Illinois,  it  is  provided  by  statute,  that  "if  any  person 
shall  falsely  use,  utter  or  publish  words  which,  in  their 
common  acceptation,  shall  amount  to  charge  any  person 
with  having  been  guilty  of  fornication  or  adulter}',  such 
words  so  spoken  shall  be  deemed  actionable,  and  he,  she  or 
they  so  falsely  publishing,  speaking  or  uttering  the  same 
shall  be  deemed  guilty  of  slander.  It  shall  be  deemed 
slander,  and  shall  be  actionable,  to  charge  any  person  with 
swearing  falsely,  or  with  having  sworn  falsely,  or  for  using, 
uttering  or  publishing  words  of,  to  or  concerning  any  person, 
which  in  their  common  acceptation  amount  to  such  charge, 
whether  the  words  be  spoken  in  conversation  of  and  con- 
cerning a  judicial  proceeding  or  not."  (/) 

"  In  actions  for  slander  or  libel,  an  unproved  allegation  of 
the  truthof  the  matter  charged  shall  not  be  deemed  proof  of 
malice,  unless  the  jury,  on  the  whole  case,  find  that  such 
defense  was  made  with  malicious  intent,  and  it  shall  be 
competent  for  the  defendant  to  establish  the  truth  of  the  mat- 
ter charged  by  a  preponderance  of  testimony."  [u) 

Where  the  defense  is  that  the  statements  made  were 
privileged  communications,  it  must  be  shown  that  the 
words  were  spoken  at  such  time  and  under  such  circum- 
stances as  would  negative  the  supposition  of  malice  in 
using  them,  (v) 

The  law  will  imply  malice  in  the  uttering  of  slanderous 

I  (r)  4  B.  &  C.  247  ;  I  Saund.  242,  n.  2  ;  I  Term.  Ill,  544;  i  East,  563  ;  2 
'  East,  436;  4  Scam.  30  ;  14  La.  An.  782;    lo  Ind.  253. 

(s)  52  111.  236 ;  16  M.  &  VV.  442  ;  Stark,  on  Slander,  44. 
(t)  2  Starr  &   Curtis'   An.  Stat.  2284;     Rev.   Stat.  (1S77)  933.     See  13  III. 
329  ;  16  111.  405  ;  26  111.  291  ;  4I  111.  I4I  ;  67  111.  4S5  ;  I06  111.  175  ;  17   Bradw. 
76. 

(«)  2  Starr  &  Curtis'  An.  Stat.  22S6 ;  Rev.  Stat.  (1S77)  933;  78  111.  412;  92 
111.  347. 

(V)  23  111.  498 ;  4  Ind.  578;  36  Barb.  (X.  Y.)  438. 


470  CASE. 

Action  for  slander — Where  it  lies,  etc. 

words,  and  heat  of  passion  does  not  rebut  the  malice  thus 
implied  ;  {zv)  but  if  a  person  provoke  and  excite  such  passion 
as  results  in  the  use  of  slanderous  words,  that  fact  should 
be  considered  in  mitigation,  {x)  And  it  is  no  mitigation  of 
the  offense  to  show  that  the  person  slandered  was  quarrel- 
some, {y) 

The  pecuniary  circumstances  of  the  defendant  may  be 
given  in  evidence  to  the  jury,  {z) 

An  infant  under  ten  years  of  age  may  maintain  an  action, 
b}'  her  next  friend,  for  slanderous  words  charging  her  with 
theft,  {a) 

The  defendant  may  show  that  he  offered  an  explanation 
of  the  offensive  words,  if  the  explanation  was  a  part  of  the 
same  conversation,  and  before  the  same  auditor}^  and  the 
same  subject  was  still  under  consideration  or  in  dispute,  {b) 

Where  the  defendant  pleaded  not  guilty,  and  filed  with 
his  plea  a  notice  of  justification,  which  was  read  to  the  jur}', 
but,  after  the  plaintiff  had  closed  his  case,  was  erased  by 
leave  of  the  court,  it  was  held  that  such  conduct  might  be 
considered  by  the  jury  in  estimating  the  damage,  and  that 
the  withdrawal  of  the  notice  did  not  render  an  instruction 
to  that  effect  improper,  (c) 

In  an  action  for  slander,  it  is  for  the  jury  to  determine, 
from  all  the  circumstances,  what  damages  ousfht  to  be 
given  ;  and  such  damages  are  not  necessaril}-  confined  to 
mere  pecuniary  loss  or  injur}- ;  and  unless  the  jury  acted 
Irom  prejudice,  partialit}''  or  corruption,  the  verdict  should 
not  be  disturbed,  {d) 


(w)  20  111.  115;  2  Gilm.  725;  10  Ind.  253;  22  Missouri,  423;  rS  Md.  177. 
But  see  4  Scam.  30;  3  Mass.  553;  Swift's  Ev.  4S7. 

(x)  so  111.  497  ;  79  111.  58.   " 

(j)  20  111.  115. 

(s)  20  111.  115;  2  Clarke,  (Iowa,)  571 ;  4  Duer,  (N.  Y.)  247;  But  see  S6 
III.  461. 

{a)   17  111.  71 ;  2  Gray,  (Mass.)  282. 

{b)   17  111.  597.     See  4  Scam.  30;  79  111.  58. 

(c)  16  111.  139. 

(,d)  16  111.  405:  9  Johns.  51;  2  Stark,  on  S.  105;  Z-  ^-  H-  45S;  4  Duer, 
(N.  Y.)  247 ;  4  Wis.  231.     See  2  Gilm.  432. 


X 


CASE.  471 

Action  for  slander — Where  it  lies,  etc. 

In  action  by  husband  and  wife,  for  slander  of  the  lat- 
ter, it  is  not  necessary  to  prove  that  the  plaintiffs  were 
husband  and  wife  at  the  time  the  slander  was  uttered, 
if  it  appears  that  they  were  married  when  the  suit  was 
brought,  (e) 

Where  a  person,  acting  as  constable,  arrested  another, 
and  took  from  him  a  knife  and  other  articles,  and  the  arrested 
person  accused  him  of  theft,  it  was  held  that  if  the  words 
■spoken  were  understood  to  relate  to  the  aiTest,  they  were 
not  actionable,  (y) 

To  charge  a  person  with  pilfering  is  actionable,  (g) 

Where  words  which  are  actionable  in  themselves  are 
not  spoken  under  circumstances  which  render  them  privi- 
leged communications,  the  law  will  presume  malice, 
which  can  not  be  rebutted  under  the  general  issue  ;  and 
it  is  no  defense  to  the  party  that  he  believed  the  v/ords  to 
be  true,  (/i) 

It  is  not  actionable  to  charge  a  man  with  an  intent  to 
commit  a  crime.  The  word  "thief"  is  not  actionable,  un- 
less the  defendant  intended  to  impute  a  crime,  which  the 
law  will  presume  if  a  contrary  intent  is  not  shown.  (/*) 

It  is  said  that  if  words  are  spoken  in  merriment  or  jest, 
without  malice,  they  are  not  actionable  ;  (J)  but  it  is  other- 
wise where  there  is  malice  and  intention  to  defame. 
Drunkenness  is  no  excuse,  {k) 

In  an  action  for  slander,  where  the  defendant  does  not 
justify,  he  may  mitigate  the  damages  in  two  ways  only  : 
1st,  by  showing  the  general  bad  character  of  the  plaintiff; 
2d,  by   showing    any  circumstances   which    tend   to    dis- 

(e)  16  111.  405. 

(/)  15  111-  37- 

(^)  4Blackf.  499. 

(A)  13  III.  271,321.     See  14  111.  46. 

(«)  4  Scam.  30;  2  E.  D.  Smith,  (N.  Y.)  3S8. 

(j)  4  Scam.  30.     But  see  2  Stark.  Ev.  464;  i  Hawk.  Pi.  Cr.  356. 

(*)  4  Sca;n.  30. 


472  CASL 

Action  for  slander — Where  it  lies,  etc. 

prove  malice,  but  do  not  tend  to  prove  the  truth  of  the 
charge.  (/) 

It  is  said  that  although  the  words  spoken  charge  an  offense 
to  have  been  committed  in  another  state,  which  is  not  pun- 
ishable where  the  suit  is  brought,  still  they  are  actionable,  (m) 
Words  actionable  at  common  law,  spoken  in  one  state,  are 
actionable  in  another,  (n) 

If  slanderous  words  are  spoken  maliciously,  or  not,  with 
the  belief  that  they  are  true,  giving  the  name  of  the  author 
of  them  does  not  mitigate  the  offense,  (o)  So  if  a  libel  is 
published,  and  the  name  of  the  author  given,  the  publica- 
tion is,  nevertheless,  actionable.  ( p) 

Words  charging  a  person  with  having  forged  a  deposi- 
tion are  actionable,  (g) 

And  to  charge  one  with  being  a  thieving  person,  or  to 
say  of  him  that  he  stole  and  ran  away,  is  actionable,  (r) 

To  charge  a  man  with  ravishing  a  cow,  imports  bestial- 
ity, and  is  actionable.  (5) 

The  words,  "  I  have  said  j^ou  stole  the  knife,  and  still 
say  it,"  are  actionable.  (/) 

To  say  that  a  woman  is  a  whore,  and  to  say  that  there  is 
a  rumor  that  she  is  such,  are  in  legal  contemplation  equally 
slanderous.  (?i) 

To  charge  a  man  with  having  a  venereal  disease,  and 
contracting  marriage  with  that  disease  upon  him,  and  com- 
municating it  to  his  wife,  will  not  be  actionable  if  the 
plaintiff  immediately  after  his  marriage  had  the  disease  in 

(I)  2  Gilm.  34;  4  Scam.  43;  20  N.  H.  561 ;  31  Ala.  654;  3  Pick.  378;  24 
Wend.  105;  7  Cow.  630;  9  Porter,  139;  3  Harrison,  (N.  J.)  397. 

(;m)  Breese,  31 ;  25  Missouri,  5S0;  3  Sneed,  (Tenn.)  664. 

(«)  4  Blackf.  469;  Id.  460;  I  Blackf.  400. 

(o)  5  Blackf.  88. 

(/)  5  Blackf.  574. 

(,7)  5  Blackf  39. 

(r)  5  Blackf.  200. 

(.0  3  Ind.  225. 

ii)  8  Blackf  462. 

(tt)  5  Ind,  426  ;  4  Town,  321.  424;  92  Til.  347 ;  23  111.  49S  ;  2  Slarr  &  Curtis* 
An.  Stat.  2285  ;  16  Bradw.  47S ;  109  111.  20. 


CASE.  473 

Observations  upon  the  declaration  for  slander,  etc. 

fact,  even  though  there  may  be  proof  that  his  wife,  whom 
he  married  without  knowing  that  she  had  the  disease,  com- 
municated it  to  him.  {v) 

To  call  a  person  a  thieving  puppy  is  actionable,  (w) 

Declarations  for  slander  and  libel. —  In  general,  three 
things  are  to  be  attended  to  in  framing  a  declaration  for 
slander  or  libel :  ist.  The  statement  of  extrinsic  facts  or 
circumstances,  (where  necessary,)  by  which  the  words  be- 
come actionable  ;  2dly.  The  colloquium,  or  averments  that 
the  libellous  or  slanderous  matter  relates  to  these  extrinsic 
facts,  and  to  the  plaintiff;  and  3dly.  Connecting  averments 
or  innuendoes,  by  which  such  parts  of  the  publication  or 
words  as  want  explanation  are  pointed  or  referred  to  the 
extrinsic  facts  which  have  been  previously  alleged,  {x) 

I  St.  As  to  the  statement  of  extrinsic  facts  or  circum- 
stances. If  the  words  themselves  are  a  direct  unequivocal 
charge,  and  ^er  se  import  slanderous  or  libellous  imputa- 
tions, and  point  directly  to  the  plaintiff,  as  that  "A.  B.  has 
committed  the  crime  of  perjury,"  no  extrinsic  facts  or  cir- 
cumstances need  be  averred.  So  where  the  meanincr  can 
be  collected  from  the  defendant's  own  words,  no  averment 
ought  to  be  made  as  to  the  existence  of  any  circumstances 
to  which  the  defendant  might  possibly  allude  ;  since  it  is 
now  settled  that  it  is  perfectly  immaterial  to  the  maintenance 
of  the  action,  whether  the  defendant  invented  the  circum- 
stances, or  whether  they  really  existed.  Therefore,  where 
the  words  are  general,  no  explanation  is  necessary  to  render 
them  more  particular,  if  the  words  themselves  impute  a 
crime,  (j) 

But  if  the  words  do  not  naturally  and/t'r  ic  convey  the 

[V)  7  Gray,  i8i. 

{■w)  26  Geo.  423, 

(x)  93  111.  595.     See  4  Bradw.  364  ;  10  Bradw.  627. 

(j)  I  Swan's  Pr.  552;  I  Chit.  PI.  (ll  Am.  ed.)  400;  9  N.  II.  9;  3  Wend. 
205 ;  2  Hill,  282  ;  25  Wend.  621  ;  23  111.  498  ;  36  Barb.  438  ;  4  Ind.  578.  See 
41  111.    141. 


474  CASE. 

Observations  upon  the  declaration  fc* slander,  etc 

meaning  the  plaintiff  would  wish  to  assig'n  to  them,  or  are 
ambiguous  and  equivocal,  and  require  explanation,  by 
reference  to  some  extrinsic  matter,  to  show  that  they  are 
actionable,  it  must  be  expressly  shown  that  such  matter 
existed,   and  that  the  slander  related  thereto,  {z) 

Thus,  at  common  law,  if  the  defendant  charged  the 
plaintiff  with  false  swearing,  a  colloquium  of  its  being  in 
a  cause  pending  in  a  court  of  competent  jurisdiction,  and 
on  a  point  material  to  the  issue,  is  necessary,  {a)  Under 
the  statute  of  Illinois,  however,  words  imputing  false  swear- 
ing are  actionable,  whether  spoken  in  a  conversation  con- 
cerning a  judicial  proceeding  or  not.  {b) 

With  respect  to  the  allegation  of  extrinsic  facts,  in  refer- 
ence to  which  the  words  are  actionable,  care  should  be 
taken  not  to  allege  such  facts  too  minutely,  aifr"  not  to 
allege  more  than  is  necessary,  lest  there  should  be  a  vari- 
ance between  the  allegation  and  the  proof;  though  if  the 
objection  to  the  proof  relates  to  matters  which  may  not  only 
be  taken  distributively,  but  which  neither  bear  essentially 
upon  the  libel  or  slander,  nor  affect  its  character,  and 
enough  is  left  to  render  it  actionable,  the  variance  will  be 
immaterial,  {c)  If  the  matter  referred  to  is  material,  and 
affects  the  charge  in  such  a  manner  that  the  omission  of  il 
would  alter  the  character  of  the  slander  or  libel,  either  in 
the  degree  in  which  it  is  charged  to  be  injurious,  or  in  the 
estimate  of  damages,  the  court  will  hold  the  plaintiff  to 
strict  proof,  {d)  But  if  the  extrinsic  facts  are  surplusage, 
so  that  the  words  alleored  in  the  declaration  are  actionable, 

O 

(z)  I  Chit.  PL  (ii  Am.  ed.)  400;  8  East,  431 ;  9  id.  93;  4  M.  &  S.  164; 
13  East,  554;  5  B.  &  A.  615;  2  Pick.  320;  15  Wend.  327;  4  Blackf.  470;  2 
Shepl.  317  ;  8  N.  H.  256.     See  48  111.  385. 

(«)  Breese,  30;  13  Johns.  48;  2  id.  10;  6  id.  82;  13  id.  68;  20  id.  344; 
I  Caine,  347;  i  Penn.  12;  8  Mo.  512;  14  Vt.  462;  13  id.  42;  7  Wis.  173; 
25  Geo.  40. 

(*)  13  111.  329;  26  111.  291 ;  41  111.  141.     See  23  111.  49S. 

(c)  10  Eng.  C.  L.  R.  36,  24;  9  lb.  156;  18  lb.  173;  3  lb.  453;  i  Swan's 
Pr.  553. 

id)  Cowp.  672;  18  Eng.  C.  L.  R.  173;  3  lb.  453;  see  i  Chit.  PI.  (11  Am. 
ed.)  401-403,  and  cases  there  cited 


CASE.  475 

Observations  upon  the  declaration  for  slander,  etc. 

independently  of  the  extrinsic  facts  and  the  colloquium^ 
the  variance  will  be  unessential,  {e) 

2d.  The  colloqicmm,  and  averments  connected  therewith, 
show,  ^rst^  (in  an  action  for  verbal  slander,)  that  the  de- 
fendant held  a  discourse,  and  usually  that  it  was  concern- 
ing the  plaintiff;  and  secondly,  that  the  slanderous  words 
were  spoken  in  the  same  discourse,  (or  the  libelous  words 
were  published,)  of  and  concerning  the  plaintiff;  and  it 
there  is  a  previous  statement  of  extrinsic  facts  or  circum- 
stances, it  is  also  averred  that  the  slanderous  matter  was 
spoken  in  such  discourse,  (or  the  libelous  matter  w'as  pub- 
lished,) of  and  concerning  the  plaintiff.  [J") 

The  colloquium  always  connects,  by  its  averments,  the 
plaintiff  and  the  extrinsic  facts  and  circumstances  wnth  the 
libelous  or  slanderous  words  set  out  in  the  declaration. 

3d.  The  innuendoes.  The  office  of  the  innuendoes  is  to 
explain  such  parts  of  the  libel  or  slanderous  words  as  are 
equivocal,  obscure,  or  need  explanation.  And  for  this 
purpose,  the  innuendoes  can. only  point  out  or  refer  to 
the  extrinsic  facts,  etc.,  which  hav^e  been  previously 
alleged,  {g) 

These  three  parts  of  a  declaration  for  a  libel  or  slander 
have  been  referred  to,  because  it  is  so  common,  in  practice, 
to  crowd  into  the  innuendoes  what  should  be  averments  in 
the  introductory  part  of  the  declaration.  The  general  rule, 
which  should  be  ever  kept  in  mind  when  framing  a  decla- 
ration for  libel  or  slander,  is  this  :  that  an  innuendo  can  not 
extend  or  enlarge  the  sense  of  the  words  beyond  their  own 

(e)  3  Hill,  N.  Y.  572 ;  28  Eng.  C  L.  Rep.  151 ;  i  Swan's  Pr.  553.  See  23 
111.  498. 

(/)  I  Chit.  PI.  (11  Am.  ed.)  403 ;  i  Saund.  242,  b,  n.  3 ;  i  Stark,  on  Slan- 
der, (2  ed.)  3S3;  7  Johns.  359;  11  lb.  54;  7  lb.  271;  6  Wend.  413;  2  Hill, 
282 ;  12  Wend.  135  ;  12  Vt.  51 ;  10  N.  H.  52  ;  2  Shepl.  317.    See  2  Gilm.  720. 

ig)  21  Pick.  51  ;  II  Wend.  38;  I  Caine,  347;  20  Johns.  344;  11  Wend.  127. 
140;  8  lb.  573;  6  Johns.  82;  13  lb.  48,  80;  3  Hill,  (N.  Y.)  572;  i  Swan's  Pr. 
554;  2  Gilm,  720;  I  Bradw.  130;  67  111.  404;  48  111.  385;  51  111.  2365  3 
Bradw.  340 ;  10  Bradw,  265,  570;  92  111.  347. 


476  CASE- 

Observations  upon  the  declaration  for  slander,  etc. 

meaning,  unless  something  is  put  in  the  previous  part  of 
the  declaration  for  the  innuendo  to  explain.  It  can  not  in 
any  case  add  or  introduce  new  matter  not  previously  stated. 
It  can  not  supply  the  want  of  a  proper  colloquium,  or  of  an 
averment  of  the  introductory  matter.  The  innuendo  can 
simply  explain  what  has  been  previously  averred  in  the 
introductory  part  of  the  declaration,  or  in  the  colloquium^ 
or  other  previous  averments.  {Ji) 

Great  care  is  required  in  stating  the  words  correctly ;  for 
the  plaintiff  must  prove  the  exact  words  laid  in  the  decla- 
ration, or  enough  of  the  same  words  to.  make  out  the  slan- 
der. But  it  is  sufficient  to  prove  part  only  of  any  set  of 
words  alleged,  if  the  part  proved  is  itself  intelligible  and 
actionable,  and  the  remainder  is  neither  a  qualification  of 
the  part  proved,  nor  necessary  to  render  the  part  proved 
intelligible.  It  is  not  sufficient,  however,  to  prove  equiva- 
lent words  of  slander,  or  different  words  of  the  same  im- 
port, {i) 

With  respect  to  variances  .from  omissions,  (that  is,  omis- 
sions to  allege  in  the  count  all  the  words  spoken,)  it  seems, 
in  case  of  oral  slander,  to  be  sufficient  to  set  out  the  words 
which  are  material,  and  it  is  not  even  necessary  to  state 
words  which  may  qualify  the  objectionab-le  ones.  (/) 

An  allegation  spoken  affirmatively  will  not  be  sustained 
/  -      by  proof  of  words  spoken  interrogatively  ;  nor  will  proot 

(Ji)  I  Swan's  Pr.  554;  Cro.  Car.  420;  i  Stark,  on  h  lander,  (Wend,  ed.) 
344;  I  Saund.  243,  n.4;  2  Gilm.  720;  Townsend  on  Sland.  &  Lib.,  sec.  335, 
and  cases  there  cited. 

{i)  82  III.  203;  92  111.  347  ;  I  Scam.  187  ;  2  Gilm.  720;  15  111.  228  ;  16  111. 
38 ;  29  111.  456;  40  111.  477  ;  41  111.  142  ;  44  111.  42;  I  Wend.  510 ;  26  Mo.  163; 
2  Bradw.  576;  71  111.  576. 

(/)  I  Stark,  on  Sim.  375;  Townsend  on  Slan.  &  Lib.,  sec.  365;  15  111.  228; 
16  111.  405.  See  111.  cases,  supra;  5  Cow.  513;  13  Wend.  9;  2  Hill,  282;  12 
Vt.  456  ;  15  Ala.  662;  II  Hump.  507;  8  Blackf.  462  ;  8  Mass.  122;  13  Pick. 
364;  17  lb,  353,  369;  8  Johns.  74;  4  Iowa,  453;  I  Blackf.  330;  4  Port.  17  ;  7 
Mo.  324;  33  Mo.  115;  X09  111.  26. 


CASE.  477 

Declaration  for  slander — General  form. 

of  words  spoken  to  a  person  sustain  a  declaration  which 
charges  words  spoken  of  a  person.  {Ji) 

So,  proof  of  words  spoken  in  the  second  person,  will 
not,  it  seems,  support  an  allegation  of  words  spoken  in  the 
third  person ;  (/)  and  words  spoken  as  a  rumor,  or  as  the 
words  of  another,  will  not  support  words  alleged  unquali- 
fiedly as  the  defendant's,  {ni) 

Distinct  sets  of  slanderous  words,  importing  the  same 
charge,  and  laid  to  have  been  spoken  at  the  same  time, 
though  in  fact  spoken  at  different  times,  may  be  put  into 
the  same  count ;  and  if  an}^  one  of  the  sets  is  sustained 
by  proof,  the  plaintiff'  is  entitled  to  a  verdict  on  the  set 
proved,  (w) 

Where  slanderous  words  are  uttered  in  a  foreign  lan- 
guage, the  declaration  should  set  out  the  words  in  that  lan- 
guage, with  a  translation,  {o) 

An  averment  of  words  spoken  in  English  will  not  be 
supported  by  evidence  of  words  spoken  in  a  foreign  lan- 
guage. (^) 

No.  219.      General  form  of  declaration  for  slander. 

{Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff',  before  and  at  the  time  of  the  committing  by  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
was  a  person  of  good  name,  credit  and  reputation,  and  de- 

(*)  4  Term,  217;  15  111.  328;  8  Johns.  74.  See  7  Serg.  &  Rawle,  223;  2 
Gilm.  720;  I  Scam.  187;  7  Mo.  324;  2  Mo.  29;  4  Blackf.  469;  7  lb.  281 ;  4 
Ala.  44;  9  lb.  226;  5  Cow.  513;  I  Wend.  506;  7  Jones  (N.  C.)  L.  R.  529; 
29  111.  456;  27  Penn.  H2;  2  M.  &  R.  176;  22  Mo.  409;  2  Stephens'  N.  P. 
2576;  36  Barb.  (N.  Y.)  26. 

CO  4  Term,  217;  7  Serg.  &  Rawle,  223;  i  Har.  &  J.  409;  8  Johns.  74. 
But  see  Cro.  Eliz.  503;  i  Binn.  395,  n. ;  4  Bibb,  515. 

(w)  21  Eng.  C.  L.  71  ;  13  East,  554. 

(»)  3  Ohio,  274;  Steph.  N.  P.  2577;  6  Wend.  407;  20  Wend,  190;  27  111. 
411;  2  Esp.  491;  Townsend  on  Slan.  &  Lib.,  sec.  365. 

(oj  12  Ind.  453;  Townsend  on  Sl.ind.  &  Lib.,  sec.  330;  Heard  on  Sland.  & 
Lib.,  sec.  210 ;  92  111.  347  ;  i6  Bradw.  478. 

(/)  6  Term,  162;  3  Wend.  394;  12  lad.  453;  I  Clarke,  (Iowa,)  432.  See 
remarks  under  form,  No.  223,  post. 


4/8  CASE. 

Declaration  for  slander — Words  charging  fornication. 


servedly  enjoyed  the  esteem  and  good  opinion  of  his  neigh- 
bors and  other  worthy  citizens  of  this  state  :  Yet  the  de- 
fendant, well  knowing  the  premises,  but  contriving  and 
maliciously  intending  to  injure  the  plaintiff,  and  to  bring 
him  into  public  scandal  and  disgrace,  on,  etc.,  in  the  county 
aforesaid,  in  a  certain  discourse  which  the  defendant  then 
and  there  had  of  and  concerning  the  plaintiff,  in  the  pres- 
ence and  hearing  of  divers  persons,  falsely  and  maliciously, 
in  the  presence  and  hearing  of  those  persons,  spoke  and 
published,  of  and  concerning  the  plaintiff,  the  false,  scan- 
dalous, malicious  and  defamatory  words  following,  that  is 
to  say,  "He,  etc.,  {setting  out  the  words,  with  ^rofer  in- 
nuendoes-^ etc.,  as  in  No,  221,  post.) 

Second  count. — And  afterwards,  to  wit,  on,  etc.,  afore- 
said, in,  etc.,  aforesaid,  in  a  certain  other  discourse  which  the 
defendant  then  and  there  had,  in  the  presence  and  hearing 
of  divers  other  persons,  of  and  concerning  the  plaintiff,  the 
defendant,  further  contriving  and  intending  as  aforesaid,  in 
the  presence  and  hearing  of  those  persons  falsely  and  ma- 
liciously spoke  and  published,  of  and  concerning  the  plaint- 
iff, these  other  false,  scandalous,  malicious  and  defamatory 
words  following,  that  is  to  say,  "He,  etc.,  {setting  out  the 
words,  with  proper  innuendoes^ 

By  means  of  the  committing  of  which  said  several  griev- 
ances by  the  defendant,  the  plaintiff  has  been  and  is  greatly 
injured  in  his  said  good  name,  credit  and  reputation,  and 
brought  into  public  scandal  and  disgrace,  and  has  been  and 
is  shunned  and  avoided  by  divers  persons,  and  has  been 
and  is  otherwise  injured  :  To  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 


No.    220.     For  xvords  charging  an    unmarried  zvonian 
with  fornication . 

{^Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  before  and  at  the  time  of  the  committing  by.  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
was,  and  alwa3^s  has  been,  virtuous  and  chaste,  and  was  a 
j^erson  of  good  name  and  reputation,  and  deservedly  en- 
joyed the  esteem  and  good  opinion  of  her  neighbors  and 
other  worthy  citizens  of  this  state  :  Yet  the  defendant, 
well  knowing  the  premises,  but  contriving  and  maliciously 
intending  to  injure  the  plaintiff  in  her  said  good  name  and 


M 


CASE.  479 

Declaration  for  slander — Words  charsrinsr  false  swearinsr. 


reputation,  and  to  bring  her  into  public  scandal  and  dis- 
grace, and  to  cause  it  to  be  suspected  and  believed  by 
divers  persons  that  she  was  unchaste,  on,  etc.,  in,  etc..  in 
a  certain  discourse  which  the  defendant  then  and  there  had, 
in  the  presence  and  hearing  of  divers  persons,  of  and  con- 
cerning the  plaintiff,  falsely  and  maliciously,  in  the  pres- 
ence and  hearing  of  the  said  persons,  spoke  and  published, 
of  and  concerning  the  plaintiff,  the  false,  scandalous,  mali- 
cious and  defamatory  words  following,  that  is  to  say,  etc., 
{here  set  out  the  words,  -with  innuendoes,  as  in  the  next 
form),  meaning  thereby  then  and  there  to  charge  that  the 
plaintiff  had  been  and  was  guilty  of  fornication.  {Add  other 
counts  if  desired,  and  coneliide  as  follows :)  By  means  of 
the  coiTimitting  of  which  said  several  grievances  by  the 
defendant,  the  plaintiff  has  been  and  is  greatly  injured  in 
her  said  good  name  and  reputation,  and  brought  into  pub- 
lic scandal  and  disgrace,  and  has  been  and  is  shunned  and 
avoided  by  divers  persons,  and  has  been  and  is  otherwise 

injured  :     To  the  damage  of  the  plaintiff  of dollars, 

and  therefore  she  brings  her  suit,  etc.  {q) 

No.  221.     For  words  charging  false  swearing. 

{Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  betbre  and  at  the  time  of  the  committing  by  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
was  a  person  of  good  name,  credit  and  reputation,  and 
deservedly  enjoyed  the  esteem  and  good  opinion  of  his 
neighbors,  and  other  worthy  citizens  of  this  state ;  and 
whereas  also,  before  the  committing  of  those  grievances, 
to  wit,  on,  etc.,  in  the  county  aforesaid,  a  certain  action 
was  pending  before  E.  F.,  one  of  the  justices  of  the  peace 
in  and  for  the  county  aforesaid,  wherein  the  People  of  the 
state  of  Illinois  was  plaintiff,  and  one  G.  H.  was  defendant, 
and  on  the  trial  of  which  said  action  then  and  there,  before 
the  said  justice,  the  plaintiff  was  duly  sworn,  and  exam- 
ined, and  did  give  his  evidence,  as  a  witness,  touching  the 
matters  in  controversy  therein  :  Yet  the  defendant,  well 
knowing  the  premises,  but  contriving  and  maliciously  in- 
tending to  injure  the  plaintiff  in  his  said  good  name,  credit 
and  reputation,  and  to  bring  him  into  public  scandal  and 
disgrace  with  and  among  his  neighbors  and  acquaintances, 

{q)  23  III.  500. 


48o  CASE. 

Declaration  for  slander — Words  charging  false  swearing. 

and  to  cause  it  to  be  suspected  and  believed  by  them  and 
others  that  the  plaintiff  had  been  guilty  of  false  swearing 
afterwards,  to  wit,  on,  etc.,  in  the  county  aforesaid,  in  3 
certain  discourse  which  the  defendant  then  and  there  had, 
in  the  presence  and  hearing  of  divers  persons,  of  and  con- 
cerning the  plaintiff,  and  of  and  concerning  the  matters 
and  premises  aforesaid,  falseh^  and  maliciously,  in  the 
presence  and  hearing  of  the  said  persons,  spoke  and  pub- 
lished, of  and  concerning  the  plaintiff,  and  of  and  con- 
cerning the  matters  and  premises  aforesaid,  the  false, 
scandalous,  malicious  and  defamatory  words  following, 
that  is  to  say,  "You"  (meaning  the  plaintiff)  "have  sworn 
to  a  damned  lie."  "You"  (meaning  the  plaintiff)  "  have 
sworn  to  a  damned  lie  before  Esquire  E.  F.,"  (meaning  the 
said  E.  F.,  the  justice  of  the  peace  aforesaid,)  "and  I" 
(meaning  the  defendant)  "can  prove  it."  "You"  (mean- 
ing the  plaintiff)  "have  sworn  to  a  lie,  and  I"  (meaning 
the  defendant)  "can  prove  it  by  your"  (meaning  the  plaint- 
iff's) "own  daughter."  "You"  (meaning  the  plaintiff) 
"swore  that  you"  (meaning  the  plaintiff)  "never  spoke  to 
me"  (meaning  the  defendant)  "previous  to  that  time" 
(meaning  the  time  of  the  trial  aforesaid)  "in  the  street; 
and  that  is  a  damned  lie,  and  I"  (meaning  the  defendant) 
"can  prove  it."  "You"  (meaning  the  plaintiff)  "have 
sworn  falsely,  and  I"  (meaning  the  defendant)  "can  prove 
it."  "You"  (meaning  the  plaintiff)  "committed  perjury, 
and  I"  (meaning  the  defendant)  "  can  prove  it  by  your  " 
(meaning  the  plaintiff's)  "daughter."  "You"  (meaning 
the  plaintiff )  "committed  perjury."  "You"  (meaning  the 
plaintiff)  "swore  falsely."  "You"  (meaning  the  plaintiff) 
"swore  to  a  lie."  "You"  (meaning  the  plaintiff)  "swore 
to  a  damned  lie."  Meaning  and  intending  thereby  to  charge 
that  the  plaintiff,  on  the  trial  of  the  action  aforesaid,  had, 
as  a  witness  as  aforesaid,  sworn  falsely. 

Second  count. — And  also  for  that  whereas  afterwards,  to 
wit,  on,  etc.,  aforesaid,  in,  etc.,  aforesaid,  in  a  certain  other 
discourse  which  the  defendant  then  and  there  had,  of  and 
concerning  the  plaintiff,  in  the  presence  and  hearing  ot 
divers  persons,  the  defendant  falsely  and  maliciously,  in 
the  presence  and  hearing  of  those  persons,  spoke  and  pub- 
lished, of  and  concerning  the  plaintiff,  the  false,  scandal- 
ous, malicious  and  defamatory  words  following,  that  is  to 
say,   "You"  (meaning  the  plaintiff)   "perjured  yoursell." 


>?ft' 


CASE.  481 

Declaration  for  slander — Words  charging  larceny. 

"He"  (meaning  the  plaintiff)  "perjured  himself."  "He" 
(meaning  the  plaintiff)  "committed  perjury."  "You" 
(meaning  tiie  plaintiff)  "  swore  to  a  lie."  "You"  (meaning 
the  plaintiff)  "swore  to  a  damned  lie."  "You"  (meaning 
the  plaintiff)  "swore  to  a  lie,  and  I"  (meaning  the  defend- 
ant) "can  prove  it.**  By  means  of  the  speaking  and  pub- 
lishing of  which  said  several  false,  scandalous  and  mali- 
cious words  by  the  defendant,  the  plaintiff  has  been  and  is 
greatly  injured  in  his  said  good  name,  credit  and  reputation, 
and  brought  into  public  scandal  and  disgrace,  and  has  been 
and  is  otherwise  injvu'ed  :  To  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc.  {k) 

IVo.  222.     I^or  -words  charging  larceny. 

[Conunencc  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  before  and  at  the  time  of  the  committing  by  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
was  a  person  of  good  name,  credit  and  reputation,  and  de- 
servedly enjoyed  the  esteem  and  good  opinion  of  all  his 
neighbors,  and  other  worthy  citizens  of  this  state  :  Yet 
the  defendant,  well  knowing  the  premises,  but  contriving 
and  maliciously  intending  to  injure  the  plaintiff,  and  to 
bring  him  into  public  scandal  and  disgrace,  on,  etc.,  in, 
etc.,  in  a  certain  discourse  which  the  defendant  then  and 
there  had,  of  and  concerning  the  plaintiff,  in  the  presence 
and  hearing  of  divers  persons,  falsely  and  maliciously,  in 
the  presence  and  hearing  of  the  said  persons,  spoke  and 
published,  of  and  concerning  the  plaintiff,  the  false,  scan- 
dalous, malicious  and  defamatory  words  lollowing,  that  is 
to  say,  "He"  (meaning  the  plaintiff)  "stole  my  corn." 
"He"  (meaning  the  plamtiff)  "and  S.  H.  stole  my  corn." 
"He"  (meaning  the  plaintiff)  "stole  my  hogs."  "He" 
(meaning  the  plaintiff)  "stole  my  eggs  and  apples." 
"He"  (meaning  the  plaintiff)  "keeps  S.  H.  to  steal  my 
(meaning  the  defendant's)  corn,  and  he"  (meaning  the 
plaintiff)  "conceals  it."  Meaning  and  intending  thereby 
to  charge  that  the  plaintiff  had  feloniously  stolen,  taken 
and  carried  away  the  goods  and  chattels  of  the  defendant. 

(//)  26  III.  291. 

31 


482  CASE. 

Declaiation  for  slander — Words  spoken  in  a  foreign  language. 

{A  second  count  may  be  here  inserted,  if  deemed  neces- 
sary, concluding  the  declaration  as  folloivs :) 

By  means  of  the  committing  of  which  said  several  griev- 
ances by  the  defendant,  the  plaintiff  has  been  and  is  greatly 
injured  in  his  said  good  name,  credit  and  reputation,  and 
brought  into  public  scandal  and  disgrace,  and  has  been  and 
is  shunned  and  avoided  by  divers  persons,  and  has  been 
and  is  otherwise  injured  :  To  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc.  (?) 

No.  11'^.     For  zvords  spoken  in  a  foreign  language. 

{^Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  before  and  at  the  time  of  the  committing  by  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
was  a  person  of  good  name  and  reputation,  and  deservedly 
enjo3^ed  the  esteem  and  good  opinion  of  his  neighbors,  and 
other  worthy  citizens  of  this  state  ;  Yet  the  defendant,  well 
knowing  the  premises,  but  contriving  and  maliciously  in- 
tending to  injure  the  plaintiff,  and  to  bring  him  into  public 
scandal  and  disgrace,  on,  etc.,  in,  etc.,  in  a  certain  dis- 
course which  the  defendant  then  and  there  had,  of  and  con- 
cerning the  plaintiff",  in  the  presence  and  hearing  of  divers 
persons,  falsely  and  maliciously,  in  the  presence  and  hear- 
ing of  the  said  divers  persons,  who  then  and  there  under- 
stood the  German  language,  spoke  and  published,  of  and 
concerning  the  plaintiff,  the  false,  scandalous,  malicious 
and  defamatory  words  following,  in  the  said  German  lan- 
guage, that  is  to  say,  {here  set  forth  the  zvords  in  the 
German  language)  ;  which  said  words  signified,  and  meant, 
in  the  English  language,  as  follows,  that  is  to  say,  {here 
set  forth  a  correct  translation  of  the  words  in  English, 
with  innuendoes,  as  in  Nos.  221  and  222,  ante.) 

( Here  insert  a  second  count,  if  deemed  necessary ,  and 
conclude  as  follows :  ) 

By  means  of  the  committing  of  which  said  several  griev- 
ances by  the  defendant,  the  plaintiff  has  been  and  is  gready 
injured  in  his  said  good  name  and  reputation,  and  brought 
into  public  scandal  and  disgrace  ;  and  has  been  and  is 
shunned  and  avoided  by  divers  persons,  and  has  been  and 
is  otherwise  injured ;  To  the  damage  of  the  plaintifi  of 
dollars,  and  therefore  he  brings  his  suit,  etc. 

(/)  27  111.  411. 


CASE.  483 

Declaration  for  slander — Words  imputing  insolvency,  etc. 

Where  the  words  were  spoken  or  published  in  a  foreign 
language,  the  foreign  words  must  be  set  forth,  {J)  together 
with  a  translation  into  English.  To  set  forth  the  words 
alone,  or  the  translation  alone,  would  not  be  sufficient,  {k) 
The  omission  to  set  forth  a  translation  may  be  rectified  by 
an  amendment.  (/) 

On  the  general  issue,  the  plaintiff  must  prove  the  correct- 
ness of  the  translation  ;  but  the  accuracy  of  the  translation 
is  admitted  by  a  demurrer,  {m.) 


]\o.  224.     By  a  tradesman,  for  tvords  imputing  insolv- 
ency, etc. — alleging  special  damage. 

(  Commence  as  in  JVo.  204,  ante.)  For  that  whereas  the 
plaintiff,  before  and  at  the  time  of  the  committing  by  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
exercised  and  carried  on,  and  still  does  exercise  and  carry 
on,  the  business  of  a  merchant,  in,  etc.,  and  has  always 
conducted  the  same  with  punctuality  in  dealing,  keeping 
his  engagements  and  paying  his  debts,  and  was  deservedly 
held  in  great  credit  and  esteem  by  his  neighbors,  and  those 
with  whom  he  had  dealings  in  his  ti  ade  and  business  as 
such  merchant,  whereby  he  daily  acquired  divers  gains  and 
emoluments  in  his  said  trade  and  business,  to  the  support 
and  maintenance  of  himself  and  his  family,  and  the  great 
increase  of  his  fortune  :  Yet  the  defendant,  well  knowing 
the  premises,  but  contriving  and  wrongfully  and  rnali- 
ciously  intending  to  injure  and  destroy  the  good  name, 
reputation  and  credit  of  the  plaintiff  in  his  said  trade  and 
business,  and  to  cause  him  to  be  regarded  as  a  person  of 
no  credit,  worth  or  substance,  and  in  insolvent  circum-, 
stances,  on,  etc.,  in  the  county  aforesaid,  in  a  certain  dis- 
course which  the  defendant  then  and  there  had,  of  and 
concerning  the  plaintiff,  and  his  circumstances,  and  his 
said  trade  and  business,  in  the  presence  and  hearing  of 
divers  persons,  falsely  and  maliciously,  in  the  presence 

(J)  6  Term,  162. 

{k)  3  Wend.  394;  3  Sanf.  734;  3  Chand.  26;    12  Ind.  453;  6  BL;  :kf.  351: 
3  Watts,  28;  3  Denio,  346;  Heard  on  Lib.  &  Slan.,  sec.  210. 
(/)  6  Term,  162 ;  3  Watts,  28;  9  C.  &  P.  766. 
{m)  6  Blackf.  351 ;  Townshend  on  Slan.  &  Lib-,  sec.  330. 


>^ 


484  CASE. 

Declaration  for  slander — Words  imputing  insolvency,  etc. 


and  hearing  of  the  said  persons,  spoke  and  pubhshed  of 
and  concerning  the  plaintiff,  and  his  circumstances,  and 
his  said  trade  and  business,  the  false,  slanderous,  mali- 
cious and  defamatory  words  following,  that  is  to  say,  "The 
property  of  B."  (meaning  the  plaintiff)  "will  be  in  the 
hands  of  the  sheriff' b}^  Saturday  night,''  (meaning  thereby 
that  the  plaintiff  was  in  insolvent  circumstances,  and  that 
^his  business  was  about  to  be  closed  by  his  creditors.)  ' '  He  " 
(meaning  the  plaintiff)  "is  trying  to  sell  out  his  stock" 
(meaning  the  slock  of  goods  which  the  plaintiff"  then  had 
in  his  store,)  "to  avoid  paying  his"  (meaning  the  plaint- 
iff's) "debts."  "He"  (meaning  the  plaintiff)  "  is  a  ras- 
cal, and  cheat,  and  not  able  to  pay  his"  (meaning  the 
plaintiff's)  "  debts." 

By  means  of  the  committing  of  which  said  several  griev- 
ances by  the  defendant,  the  plaintiff  has  been  greatly  in- 
jured in  his  said  good  name,  credit,  reputation,  trade  and 
business  :  And  one  G.  H.,  then  one  of  the  creditors  of  the 
plaintiff,  thereupon,  by  reason  of  the  speaking  and  publish- 
ing of  the  said  false,  scandalous,  malicious  and  defama- 
tory words  by  the  defendant  as  aforesaid,  then  and  there 

sued  out  of  the Court  of  the  said  county  a  certain  writ 

of  attachment,  against  the  goods  and  chattels  of  the  plaint- 
iff', and  caused  the  stock  of  goods  and  merchandise  of  the 
plaintiff  to  be  seized,  and  the  same  then  and  there  were 
seized,  by  virtue  of  the  said  writ,  to  satisf}'  the  debt  of  the 
plaintiff  to  the  said  G.  H.  ;  and  thereby  the  store  of  the 
plaintiff  was  then  and  there  closed,  and  kept  closed  for  a 

long  space  of  time,  to  wit, days,  during  all  which  time 

the  plaintiff  was  hindered  and  prevented  from  carr3ang  on 
his  said  trade  and  business  ;  and  he  was  thereby  also  com- 
pelled to  and  did  then  and  there  pay  out  divers  sums  of 

money,  amounting  to dollars,  in  and  about  the  said 

attachment-suit,  and  for  costs  in  that  behalf,  and  in  obtain- 
ing the  release  of  his  said  goods  and  merchandise  from  the 
attachment  atoresaid ;  and  divers  persons  who  had,  before 
the  speaking  of  the  said  false,  scandalous,  malicious  and 
defamatory  words  by  the  defendant  as  aforesaid,  been  ac- 
customed to  deal,  and  divers  other  persons  who  would 
otherwise  have  dealt,  with  the  plaintiff  in  his  said  trade  and 
business,  have  since  that  time,  and  wholly  on  that  accomit, 
respectively  refused  to  do  so;  and  particularly  one  E.  F., 
by  reason  of  the  speaking  and  publishing  of  the  said  false, 


CASE.  485 

General  form  of  a  declaration  for  libel  in  a  newspaper. 

scandalous,  malicious  and  defamatory  words  by  the  defend- 
ant as  aforesaid,  then  refused,  and  thence  hitherto  has  re- 
fused to  liave  any  dealings  or  transactions  with  the  plaintiff 
in  his  said  trade  and  business,  as  he  the  said  E.  F.  other- 
wise might  and  would  have  had  ;  and  by  means  of  the  sev- 
eral premises  the  plaintiff  has  there  lost  and  been  deprived 
of  divers  great  gains  and  profits  which  otherwise  would 
have  accrued  to  him  in  his  said  trade  and  business,  and 
has  been  and  is  otherwise  injured;  {here  add  any  other 
cause  of  special  damage  that  may  accord  with  the  facts) : 
To  the  damage  of  the  plaintiff  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

No.  225.     For  libel  in  a  nezvsfafer. 

{Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  before  and  at  the  time  of  the  committing  by  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
was  a  person  of  good  name,  credit  and  reputation,  and  de- 
servedly enjoyed  the  esteem  and  good  opinion  of  his  neigh- 
bors and  other  worthy  citizens  of  this  state  :  Yet  the  defend- 
antjwell  knowing  the  premises,  but  wickedly  and  maliciously 
intending  to  injure  the  plaintiff',  and  to  bring  him  into  public 
scandal  and  disgrace,  on,  etc.,  in,  etc.,  wickedly  and 
maliciously  did  compose  and  publish,  and  cause  "^to  be 
composed  and  published,  of  and  concerning  the  plaintiff, 
in  a  certain  newspaper  called  the ,  whereof  the  defend- 
ant was  then  and  there  the  editor  and  proprietor,  a  certain 
false,  scandalous,  malicious  and  defamatory  libel,  contain- 
ing (among  other  things)  the  false,  scandalous,  malicious, 
defamatory  and  libelous  matters  following,  of  and  concern- 
ing the  plaintiff,  that  is  to  say,  "He,  (meaning  the  plaint- 
'If,)  etc.  {setting  out  the  libelous  matter  in  h^ec  verba,  with 
proper  innuendoes,  as  in  the  next  form  ^ 

Second  count. — And  the  defendant,  further  contriving 
and  intending  as  aforesaid,  afterwards,  to  wit,  on,  etc., 
aforesaid,  in,  etc.,  aforesaid,  falsely,  wickedly  and  mali- 
ciously did  compose  and  publish,  and  cause  to  be  composed 
and  published,  of  and  concerning  the  plaintiff,  in  the  said 

newspaper  called  the  ,   whereof  the    defendant  was 

then  and  there  the  editor  and  proprietor,  a  certain  other 
false,  scandalous,  malicious  and  detamator}^  libel,  contain- 
ing (among  other  things)  the  false,  scandalous,  malicious, 


486  CASE. 

Declaration  for  libel   hy  letter,  ;  tc. 


defamatory  and  libelous  matters  following,  of  and  conceri  • 
ing  the  plaintiff,  that  is  to  say,  etc.  {Here  set  out  th  ' 
libelous  matter^  with  proper  innuendoes^  as  in  next  form. 
By  means  of  the  committing  of  which  said  several  griev- 
ances by  the  defendant,  the  plaintiff  has  been  and  is  greatl} 
injured  in  his  said  good  name,  credit  and  reputation,  and 
brought  into  public  scandal  and  disgrace,  and  has  been  and 
is  shunned  and  avoided  by  divers  persons,  and  has  been 
and  is  otherwise  injured  :  To  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 


Ko.  226.     For  libel  by  letter^  imputing  insolvency ;  claim- 
ing special  damages,  etc. 

{Commence  as  in  No.  204,  ante.)  For  that  whereas  the 
plaintiff,  before  and  at  the  time  of  the  committing  by  the 
defendant  of  the  several  grievances  hereinafter  mentioned, 
exercised  and  carried  on,  and  still  does  exercise  and  carry 
on,  the  business  of  a  merchant,  in,  etc.,  and  has  always 
conducted  the  same  with  punctuality  in  dealing,  keeping 
his  engagements,  and  paying  his  debts,  and  was  deservedly 
held  in  great  credit  and  esteem  by  his  neighbors  and  those 
with  whom  he  had  dealings  in  his  trade  and  business  as 
such  merchant,  whereby  he  daily  acquired  divers  gains  and 
emoluments  in  his  said  trade  and  business,  to  the  support 
and  maintenance  of  himself  and  his  family,  and  the  great 
increase  of  his  fortune  :  Yet  the  defendant,  well  knowing 
the  premises,  but  wickedly  and  maliciously  intending  to 
injure  and  destroy  the  good  name,  reputation  and  credit  of 
the  plaintiff  in  his  said  trade  and  business,  and  to  cause 
him  to  be  regarded  as  a  person  of  no  credit,  worth,  or  sub- 
stance, and  in  insolvent  circumstances,  and  to  prejudice 
and  injure  the  plaintiff  with  one  E.  F.,  a  trader  and  mer- 
chant doing  business  at ,  who  for  a  long  time  before 

then  had  dealt,  and  was  then  dealing,  with  the  plaintiff  in 
the  way  of  his  said  trade  and  business,  and  to  induce  the 
said  E.  F.  to  leave  off  dealing  with  the  plaintiff,  on,  etc.,  in, 
etc.,  did  falsely  and  maliciously  write  and  publish  a  certain 
false,  scandalous,  malicious  and  defamatory  libel,  of  and 
concerning  the  plaintiff^  and  of  and  concerning  his  said 
trade  and  business,  circumstances  and  credit,  in  the  form 
of  a  letter  addressed  to  the  said  E.  F.,  containing  the  false, 
scandalous,  malicious,  defamatory  and  libelous  matters  fol- 


\ 


CASE.  487 

Declaration  for  libel,  by  letter,  etc. 

lowing,  that  is  to  say  :  "Sir,  you  (meaning  the  said  E. 
F.)  will  be  surprised  to  see  a  stranger  write  to  you,  (mean- 
ing the  said  E.  F.,)  but  as  I  (meaning  the  defendant)  have 
no  other  view  but  doing  as  I  (meaning  the  defendant)  would 
be  done  by,  therefore  as  I  (meaning  the  defendant)  believe 
you  (meaning  the  said  E.  F.)  are  a  fair  trader,  therefore 
can  not  see  you  (meaning  the  said  E.  F.)  wronged  without 
letting  you  (meaning  the  said  E.  F.)  know  it,  for  I  (meaning 
the  defendant)  am  told  you  (meaning  the  said  E.  F.)  have 
large  dealings  with  one  A.  B.,  (meaning  the  plaintiff,)  and 
he  (meaning  the  plaintiff)  was"a  bankrupt  some  years  before, 
(meaning  before  the  writing  and  publishing  of  the  said 
libel,)  and  never  could  get  his  (meaning  the  plaintiff's)  cer- 
tificate ;  so  all  that  he  (meaning  the  plaintiff)  has  or  deals 
for  is  his  (meaning  the  plaintiff's)  former  creditors'  rights, 
and  he  (meaning  the  plaintiff)  has  not  been  in  business 
above  three  quarters  of  a  year,  and  now  is  joined  with  his 
(meaning  the  plaintiff's)  brother,  (meaning  one  O.  D.,)  and 
they  (meaning  the  plaintiff  and  the  said  O.  D.)  get  all  the 
credit  they  (meaning  the  plaintiff  and  O.  D.)  can  by  one 
(meaning  one  of  the  two  last-mentioned  persons)  recom- 
mending another,  (meaning  one  of  the  two  last-mentioned 
persons,)  and  they  (meaning  the  plaintiff  and  the  said  O. 
D.)  are  arrested  every  day,  etc.,  to  bail  one  another  and 
pay  nobody,  so  now  I  (meaning  the  defendant)  have  done 
my  (meaning  his,  the  defendant's,)  part,  and  if  you  (mean- 
ing the  said  E.  F.)  are  not  the  man  it  (meaning  the  said 
letter  or  libel)  was  designed  for,  pray  burn  it  (meaning  the 
said  letter  or  libel)  ;  and  if  you  (meaning  the  said  E.  F. ) 
take  hint,  burn  it,  (meaning  the  said  letter  or  libel,)  for  the 
writer  (meaning  the  defendant)  is  neither  to  get  nor  lose  by 
it,  so  farewell."  Ard  the  defendant  then  and  there  falsely 
and  maliciously  sent  the  said  letter,  containing  the  false, 
scandalous,  malicious,  defamatory  and  libelous  matters 
aforesaid,  b}^  mail  to  the  said  E.  F.,  and  the  same  was 
then  received  and  read  by  the  said  E.  F.,  as  thereby  pub- 
lished by  the  defendant  to  the  said  E.  F.  By  means  of  the 
committing  of  which  said  several  grievances  by  the  de- 
fendant, the  plaintiff  has  been  and  is  greatly  injured  in  his 
said  good  name,  reputation,  credit,  trade  and  business,  and 
has  fallen  into  great  discredit  among  his  creditors,  and 
other  worthy  persons  with  whom  he  had  dealt  and  traded 
in  his  said  trade  and  business,  and  of  whom  he  was  accus- 


488  CASE. 

Defenses  to  the  action. 

tomed  to  buy  goods  and  merchandise  o..  credit,  and  espe- 
cially the  said  E.  F.  ;  insomuch  that  those  creditors,  and 
other  persons,  and  especiiilly  the  said  E.  F.,  wholly  on 
account  of  the  writing  and  publishing  of  the  said  false, 
scandalous,  malicious  and  defamatory  libel  by  the  defend- 
ant as  aforesaid,  have  altogether  refused,  and  still  refuse, 
to  buy  of,  or  sell  to,  or  have  anything  to  do  with,  the 
plaintiff  in  his  trade  and  business  aforesaid ;  {here  may  be 
added  any  other  causes  of  special  damage  that  the  facts 
may  justify ;)  and  also  by  means  of  the  premises  the 
plaintiff  has  been  and  is  otherwise  injured  :  To  the  dam- 
age of  the  plaintiff  of dollars,  and  therefore  he  brings 

his  suit,  etc. 

A  publication,  to  be  a  libel,  must  tend  to  injure  the 
plaintiff's  reputation,  or  expose  him  to  public  hatred,  con- 
tempt or  ridicule,  {o)  but  it  need  not  charge  a  crime,  (j^) 
It  is  defined  by  the  statute  of  Illinois,  to  be  a  malicious 
defamation,  expressed  either  by  printing  or  by  signs  or 
pictures,  or  the  like,  tending  to  blacken  the  memory  of  one 
who  is  dead,  or  to  impeach  the  honesty,  integrity,  virtue  or 
reputation,  or  publish  the  natural  defects,  of  one  who  is 
alive,  and  thereby  to  expose  him  or  her  to  public  hatred, 
contempt  or  ridicule,  {q) 

Where  a  member  of  a  school  district  wrote  a  letter  to  a 
school  committee,  accusing  a  teacher  of  a  want  of  chas- 
tity, and  remonstrating  against  her  appointment,  it  was 
held  that  the  communication  was  libelous,  if  shown  to  have 
been  made  with  malice,  or  without  probable  cause,  if) 

DEFENSES    TO    THE    ACTION. 

For  pleas  in  abatement,  and  observations  on  the  princi- 
ples governing  the  same,  see  "Pleas  to  the  Jurisdiction  and 
in  Abatement,"  in  assumpsit,  arite,  pages  144-161. 

{o)  8  B'ackf.  426;  32  Penn    St.  273. 

(/)  5   Ind.  364. 

{q)  I  Starr  &  Curtis'  An.  Stat.  804;   Rev.  Stat.  (1S77)  374      See  86  111.  147 

(r)  3  Pick.  379. 


i 


CASE.  489 

Plea  of  not  guilty — Observa  ons,  etc. 

Pleas  in  bar. — In  an  action  on  the  case,  the  \  lea  of  not 
guilty  is  the  general  issue. 

No.  227.     Plea  of  not  guilty. 

In  the Court. 

Term,  18 — 

C.  D.  ) 

ats.  >Case. 
A.  B.  )  And  the  defendant,  by  E.  F.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  he  is  not  guilty  of  the  said  supposed  grievances 
above  laid  to  his  charge,  or  any  or  either  of  them,  in  man- 
ner and  form  as  the  plaintiff  has  above  thereof  complained 
against  him  :  And  of  this  the  defendant  puts  himself  upon 
the  cou;itry,  etc. 

The  plea  of  not  gtulty^'m.  an  action  on  the  case,  puts  in 
issue  the  wrongful  act,  and  it  is  very  seldom  necessary  to 
plead  any  other  plea.  The  gist  of  the  action  is  the  tort, 
and  thisis  put  in  issue  by  this  plea.  It  compels  the  plaint- 
iff to  prove  every  essential  allegation  in  his  declaration  that 
goes  to  make  up  the  liability  of  the  defendant.  The  facts 
stated  in  the  inducement,  however,  are  not  put  in  issue  by 
it.  (5)  Thus  where  the  action  is  for  negligent  driving,  and 
the  defendant's  possession  of  the  carriage  alleged  to  have 
been  negligently  driven  is  stated  in  the  declaration  by  way 
of  inducement,  such  possession  is  admitted  by  the  plea.  (/)^ 

In  an  action  under  the  statute  of  Illinois,  for  causing  the 
death  of  a  person  by  negligence,  the  plea  of  not  guilty 
puts  in  issue  the  allegation  of  there  being  a  widow  or  next 
of  kin  surviving,  as  well  as  the  commission  of  the  act  com- 
plained of.  iji) 

(s)  I  Bing.  N.  C.  5S8,  3  Dowl.  619,  S.  C  ;  S  Jur  9S6;  2  Greenl.  Ev.,  sec 
231. 

(/)  3  M.  &  Rob.  260;  2  Steph.  N.  P.  1025. 
[u)  48  111.  410. 


490  CASE. 

Special  pleas  generally — General  issue  in  actions  for  slander,  etc. 

Special ^leas  generally. — As  an  action  on  the  case  is 
founded  upon  the  mere  justice  and  conscience  of  the  plaint- 
iff's case,  and  is  in  the  nature  of  a  bill  in  equity,  and  is  in 
effect  so,  the  defendant  may  under  the  general  issue  intro- 
duce in  evidence  any  matters  which  show  that  the  cause  of 
action  has  been  discharged,  or  that  in  equity  and  good  con- 
science the  plaintiff  ought  not  to  recover,  {y)  Thus  a  re- 
lease, former  recovery,  or  satisfaction  need  not  be  plead- 
ed.  (Zi^) 

But  to  this  general  rule  there  are  some  exceptions,  such 
as  the  statute  of  limitations,  and  justification  in  an  action  for 
slander,  alleging  the  truth  of  the  words,  which  must  be 
speciall}''  pleaded,  {x) 

The  defendant  may,  however,  plead  specially  anything 
which,  admitting  that  the  plaintiff  once  had  a  cause  of 
action,  goes  to  discharge  it ;  such  as  a  release,  accord  and 
satisfaction,  discharge  in  bankruptcy,  former  recovery, 
etc.  (j/) 

General  issue  in  actions  for  slander. — In  an  action  for 
oral  or  written  slander,  the  plea  of  not  guilty  operates  as  a 
denial  of  the  extrinsic  facts  stated  in  the  inducement ;  the 
speaking  of  the  words,  or  publication  of  the  libel ;  the 
truth  of  the  colloquium,  or  the  application  of  the  words  to 
the  plaintiff,  and  to  the  extrinsic  facts  stated  in  the  decla- 
ration ;  and  the  damage,  when  special  damage  is  necessary 
to  maintain  the  action.  And  when  the  defense  is,  that  the 
libel  or  words  were  published  or  spoken,  not  in  the  mali- 
cious sense  imputed  by  the  declaration,  but  in  an  innocent 

{v)  I  Chit.  PI.  (5  Am.  ed.)  432;  Greenl.  on  Ev.,  sec.  231 ;  2  Burr.  1353; 
10  Johns.  291.  See  6  Hill,  114. 

(w)  lb.;  Yelv.  174,  «,  n.  i ;  Steph.  PI.  182,  183;  2  Bing.  377;  i  Cum. 
R.  273;  2  Greenl.  on  Ev.,  sec.  231. 

(«)  I  Chit.  PI.  (5  Am.  ed.)  434-436;  2  Greenl.  on  Ev.,  sec.  232. 

(j)  19  Wend.  463;  6  Hill,  (N.  Y.)  114.     See  i  Chit.  PI.  43-2-435 


CASE.  491 

General  issue  in  actions  for  slander,  etc. 

sense,  or  upon  a  justifiable  occasion,  this  matter  may  be 
given  in  evidence  under  the  general  issue,  (z) 

The  defendant  can  not  prove  under  the  general  issue  the 
truth  of  the  words,  either  in  bar  of  the  action,  or  in  mit- 
igation of  damages,  (a) 

But  proof  of  the  general  bad  character  of  the  plaintiff  is 
admissible  in  order  to  reduce  the  damages ;  (d)  but  wit- 
nesses should  not  be  allowed  to  give  in  detail  all  the  reports 
in  circulation  derogatory  to  the  plaintiff's  character,  as  it 
would  lead  to  endless  investigation,  and  burden  the  case 
with  immaterial  circumstances,  without  any  beneficial  re- 
sults, (c) 

It  may  also  be  shown,  in  mitigation  of  damages,  that  the 
words  were  spoken  in  the  heat  of  passion;  (d)  but  anger 
is  not  a  justification  of  the  use  of  slanderous  words,  or  even 
a  mitigation  of  the  offense,  unless  provoked  by  the  person 
against  whom  such  words  are  used,  (e)  And  it  may  be 
proved  that  the  defendant  was  insane  at  the  time  he  spoke 
the  words.  {/") 

The  defendant  is  allowed  to  prove,  that  at  the  time  and 
place  of  uttering  the  words,  he  offered  an  explanation  of 
them,  (g) 

(z)  109  111.  26;  16  Bradw.  478;  15  Bradw.  209;  17  Bradw.  76,  561 ;  18 
Bradw.  87;  I  Chit j  PI,  (ii  Am,  ed.)  491;  Townshend  on  Slan.  &  Lib.,  sec. 
350;  2  Gi-eenl.  Ev.,  sec.  421 ;  7  Cow,  633,  634;  2  Hill,  515;  3  Johns,  181  ;  9 
Penn.  313  ;  14  111.  461 ;  8  Blackf,  95. 

(a)  2  Greenl.  E,v.,  sec.  424  ;  Heard  on  Lib,  &  Slan.,  sec,  239  ;  Townshend 
on  Slan.  &  Lib.,  sec.  211,  and  cases  there  cited;  20  111.  325;  29  Maine,  323  ;  4 
Sneed,  520;  22  Ala.  617, 

[i)  4  Scam.  39;  2  Greenl.  Ev.,  sec.  424;  2  Cow.  811 ;  14  Mass.  275  ;  7  Met. 
86;  2  Stnrk  Ev.,  216,  470;  2  Gilm.  34;  20  111.  325  ;  6  Blackf.  155  ;  4  E.  D. 
Smith,  (N.  Y,)  644;  4  Mich,  409  ;  10  Iowa,  557.  But  see  i  Chit.  PI.  (11  Am. 
el.)  493,  II  Price,  235, 

(c)  20  111,  325  ;  6  Barr,  170  ;  6  Allen,  406  ;  Townshend  on  Slan.  &  Lib,,  sec. 
407. 

(d)  3  Ind.  518  ;  8  Blackf.  462  ;  7  Ind.  440;  4  Iowa,  453;  3  Mass.  546. 

(e)  50  111.  497,     See  20  111.  115;  10  Bradw.  627;  86  111.  461, 

(/)  4  Blackf.  463,     See  4  Bradw.  364;  I  Bradw.  130;    15  Bradw.  30. 

{g)  17  111.  597;   18  Md,  177.     See  2  Gilm.  725;  14  III,  459;  15  La.  An.  48. 


y^ 


492  CASE. 

Special  pleas  in  actions  for  slander,  etc. 

It  is  not  admissible,  under  the  general  issue,  to  prove  in 
mitigation  of  damages  that  there  were  rumors  in  the  plaint- 
iff's neighborhood  that  he  had  been  guilty  of  the  offense 
charged,  [h) 

In  short,  the  defendant,  where  he  does  not  justify,  can 
mitigate  damages  in  two  wa3^s  only  :  ist,  by  showing  the 
general  bad  character  of  the  plaintiff;  2d,  by  showing 
an}'  circumstances  which  tend  to  disprove  malice,  but  do 
not  tend  to  prove  the  truth  of  the  charge.  (/) 

Special  ^leas  in  actions  for  slander. — As  we  have  just 
seen,  a  defendant  can  not  under  the  general  issue,  in  an 
action  for  libel  or  slander,  give  in  evidence  the  truth  of  the 
matter,  or  any  part  of  it,  even  in  mitigation  of  damages, 
but  he  must  justify  specially,  {j)  or  give  notice  of  matter 
in  justification  with  tlie  general  issue.  {Ji) 

In  framing  a  plea  of  justification,  care  must  be  taken  to 
observe  the  following  rules  :  ist,  it  is  necessary,  although 
the  libel  contains  a  general  imputation  upon  the  plaintiff's 
character,  that  the  plea  should  state  s-pecijic  facts ,  showing 
in  what  particular  instances,  and  in  what  manner,  he  has 
misconducted  himself;  2dly,  the  matter  sQt  up  by  way  of 
justification  should  be  strictl}^  conformable  with  the  slander 
laid  in  the  declaration,  and  must  be  proved  as  laid,  at  least 
in  substance  ;  and,  3dly,  if  the  matter  of  justification  can 
be  extended  to  the  whole  of  the  libel   or  slander,  the  plea 

(Ji)  4  Scam.  46;  14  111.  460;  45  111.  23;  3  Pick.  1 ;  3  lb.  376;  3  Mass.  546; 
6  lb.  514;  I  Root,  346;  4  Conn.  408:32  Barb.  (N.  Y.)  315. 

(/)  2  Gilm.  34;  4  Scam.  43;  20  N.  H.  561 ;  31  Ala.  654.     See  i  Chit.  PI. 

433'  434- 

^ j')  I  Chit.  PI.  (11  Am.  ed.)  494;  13  Johns.  475;  i  Blackf.  520;  4  Sneed, 
520;  18  Md.  177;  17  Iowa,  290;  Townsend  on  Slan.  &  Lib.,  sec.  409;  13 
Wend.  9;  15  Ala.  662;  8  Blackf.  134;  Heard  on  Lib.  &  Slan.,  sec.  239;  2 
Strange,  1200. 

{k)  14  111.  46:  Townsend  on  Slan.  &  Lib.,  sec.  251;  21  Pick.  404;  \ 
Johns.  475;  8  Wend.  550;  24  Wend.  354. 


i 


CASE.  493 

Special  pleas  in  actions  for  slander,  etc. 

should  not  be  confined  to  part  only,  leaving  the  rest  unjus- 
tified. (/) 

It  is  no  objection  to  a  plea,  however,  that  it  does  not 
justify  the  speaking  of  all  the  words  ;  if  the  charge  is  divisi- 
ble, a  justification  of  part  will  be  good^r*?  ianto.  {iri)  But 
in  such  case  the  plea,  in  the  introductory  part,  must 
not  profess  to  answer  the  whole  of  the  declaration  or  count, 
but  only  such  part  or  parts  as  it  really  does  answer,  [li) 

To  support  a  special  plea  in  justification,  where  crime  is 
imputed,  the  same  evidence  must  be  adduced  as  would  be 
necessary  to  convict  the  plaintitT  upon  an  indictment  for  the 
crime  charged ;  {o)  and  it  is  conceived,  that  he  would  be 
entitled  to  the  benefit  of  any  reasonable  doubt  of  his  guilt 
in  the  minds  of  the  jury,  in  the  same  manner  as  in  a  crim- 
inal trial.  If  the  evidence  falls  short  of  proving  the  com- 
mission of  the  crime,  the  jury  may  still  consider  the  cir- 
cumstances, as  tending  to  show  that  the  defendant  had 
probable  cause  to  believe  the  charge  to  be  true,  and  to 
lessen  the  character  of  the  plaintiff',  and  therefore  to  reduce 
the  amount  of  the  damages,  {-p) 

The  statute  provides  that  "  it  shall  be  competent  for  the 
defendant  to  establish  the  truth  of  the  matter  charged  by  a 
preponderance  of  the  testimony."  {q) 

(/)  I  Chit.  PI.  (ii  Am.  ed.)  494;  Cro.  Jac.  676,  578:  Cro.  Eliz.  623;  13 
East,  554:  2  B.  &  C.  678;  4D.  &  R.  230,  S.  C. ;  1  Stark,  on  Slander,  (2ed.) 
480;  3  Blackf.  298;  Heard  on  Lib.  &  Slan.,  sec.  240,  242;  12  Ired.  348;  20 
Johns.  204. 

im)  6  Bing.  587.     See  i  Stark.  Slan.  (2  ed.)  484. 

(»)  I  Chit.  PI.  (11  Am.  ed.)  497. 

{o)  24  111.  566 ;  32  Penn.  95 ;  41  111.  141 ;  14  111-  46 ;  i  Gilm.  556 ;  40  111. 
477;  I  Carter,  (Ind.)  42,  554;  35  Maine,  315;  2  Tyler,  75;  Wright,  6S3 ;  6 
Barr,  170;  6  Cow.  118. 

(j?>)  2  Greenl.  Ev.,  sec.  426;  2  Stark,  on  Slan.  S3-94,  and  notes  by  Wen- 
dell. See  also  7  Law  Reporter,  533;  4  Esp.  248;  2  C.  &  P.  570;  i  M.  & 
M  46,  S.  C;   I  C.  &  K.  616  ;   I  Gilm.  556 ;  71  111.  209. 

{q)  2  S'arr  &  Curtis'  An.  Stat.  2286;  Rev.  Stat.  (1S77)  933;  78  111.  412  ;  17 
Bradw.  76,  561. 


494  CASE. 

Plea  justifying  words  charging  perjury. 

No.  228.     Plea  Justifying  zvords  tmputmg  ;perjury. 

{First  -pica  not  guilty — No.  227,  ante.)  And  for  a  fur- 
ther plea  in  this  behalf,  the  defendant  says  that  the  plaintitT 
ought  not  to  have  his  aforesaid  action  against  him,  the  de- 
fendant, because  he  says,  that  before  the  committing  of 
the  said  supposed  grievances  in  the  said  declaration  men- 
tioned, to  wit,  on,  etc.,    in,    etc.,   at  a  term  of  the 

Court  of  the  said  county,  begun  and  held  at  ,  within 

and  for  the  said  county,  on,  etc.,  before  the  Honorable 
E.  F.,  then  being  judge  of  the  same  court,  a  certain 
issue  duly  joined  in  the  said  court,  between  one  G.  H.  and 
one  L.  M.,  in  a  certain  plea  of  trespass,  came  on  to  be 
tried  in  due  foi'm  of  law,  and  was  then  and  there  tried  by  a 
certain  jury  of  the  country,  dul}''  summoned,  empanneled 
and  sworn  between  the  parties  aforesaid  ;  and  that  upon 
the  said  trial  the  plaintiff  appeared  as  a  witness  on  the  part 
of  the  said  L.  M.,  and  was  duly  sworn,  and  took  his  oath 
befofe  the  said  court,  to  speak  the  truth,  the  whole  truth, 
and  nothing  but  the  truth,  touching  the  matters  in  issue  on 
the  said  trial ;  and  that  at  and  upon  the  said  trial,  certain 
questions  became  and  were  material,  in  substance  as  fol- 
lows, that  is  to  say,  {here  state  the  material  questions)  ; 
and  that  the  plaintiff,  being  so  sworn  as  aforesaid,  and  be- 
ing then  and  there  lawfully  required  to  depose  the  truth  in 
a  proceeding  in  a  course  of  justice,  at  and  upon  the  said 
trial,  in  the  court  aforesaid,  then  and  there  falsely,  wilfully, 
voluntarily  aud  corruptly  did  sa}^  depose  and  swear,  among 
other  things,  in  substance  and  to  the  efJect  following,  that 
is  to  say,  {here  state  the  evidence^as fully  as  the  words  in 
the  declaration^;  whereas,  in  truth  and  in  fact,  {here  neg- 
ative the  plain ti^^s  cvidence^as  in  an  indictment  for  -pcr- 
j'nry)  :  And  the  plaintiff  did  thereby  in  the  said  court,  so 
held  as  aforesaid,  upon  his  said  oath  upon  the  trial  as  afore- 
said, in  manner  and  form  as  aforesaid,  commit  wilful  and 
corrupt  perjury  :  Wherefore  the  defendant,  at  the  time  men- 
tioned in  the  said  declaration,  in,  etc.,  spoke  and  published 
of  and  concerning  the  plaintiff  the  said  several  words  in  the 
said  declaration  mentioned,  as  it  was  lawful  for  him  to  do 
for  the  cause  aforesaid.  And  this  the  defendant  is  ready 
to  verify ;  wherefore  he  prays  judgment  if  the  plaintiff' 
ought  to  have  his  aforesaid  action  against  him,  etc.  (r) 

(r)  Whart.  Prec.  of  Indict.  &  Pleas.  294;  3  Chit.  PI.  1033. 


CASE.  495 

Replication  de  injuria — Plea  justifying  words  invputing  larceny. 

It  is  said  that  the  plea  of  justification  must  be  direct  and 
explicit.  It  must  in  every  respect  correspond  with,  and  be 
as  extensive  as,  the  charge  in  the  declaration.  "  It  must 
he  as  broad  as  that  charge  is  ;  if  it  go  beside  it,  or  fall  short 
of  it,  it  is  naught ;  it  must  be,  in  point  of  law,  identical  with 

it."  (5) 

JVo.  229.      General  7-cplicatton,  de  injuria. 

In  the Court. 

Term,  iS — . 

A.  B.  ^ 
vs.     >Case. 

C.  D.  3  And  the  plaintiff,  as  to  the  plea  of  the  defend- 
ant by  him  secondly  above  pleaded,  says  that  he,  the 
plaintiff,  by  reason  of  anything  in  that  plea  alleged,  ought 
not  to  be  barred  from  having  his  aforesaid  action,  because 
he  says,  that  the  defendant,  at  the  said  time  when,  etc.,  in 
the  said  declaration  mentioned,  of  his  own  wrong,  and 
without  the  cause  by  him  in  that  plea  mentioned,  did  com- 
mit the  said  several  grievances  in  the  said  plea  mentioned, 
in  manner  and  form  as  the  plaintiff  has  in  his  said  declara- 
tion above  thereof  complained  against  him,  the  defendant : 
And  this  the  plaintiff  prays  may  be  inquired  of  by  the 
country,  etc. 

The  general  replication,  de  injti7'ia,  is  the  proper  replica- 
tion to  a  plea  of  justification,  in  actions  for  oral  and  written 
slander.  (/) 

A^o.  230.     Plea  justifying  words  inifitiiiig  larceny. 

{First  plea  not  guilty — JVo.  227,  ante.)  And  for  a  fur- 
ther plea  in  this  behalf,  the  defendant  says  that  the  plaintiff 
ought  not  to  have  his  aforesaid  action  against  him,  the 
defendant,  because  he  says,  that  the  plaintiff,  before  the 

(5)  1  Iredel,  348;  5  Man.  &  Rjl.  251 ;  10  Barn.  &  Cress.  263;  2  Barn.  & 
Ad.  773:  10  Bing.  519;  4  Moore  &  Scott,  307;  5  Scott,  N.  R.  Soi :  Heard 
on  Lib.  &  Slan.,  sec.  242. 

(/)  I  Chit.  PI.  (11  Am.   ed.)   590;  7  Cow.  4;   i  Saund.  244,  c,  (6  ed.) 
Heard  on  Lib.  &  Slan.,  sec.  252.     Sec  7  Price,  670;   13  III.  80. 


496  CASE. 

Reference. 

committing  of  the  said  supposed  grievances  in  the  said 
declaration  mentioned,  to  wit,  on,  etc.,  in,  etc.,  one  horse, 

of  the  vahie  of  dollars,  of  the   goods   and   chattels 

of  one  E.  F,,  then  and  there  being  found,  feloniously 
did  steal,  take,  lead  and  drive  away,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  People  of  the  said 
state  of  Illinois  :  Wherefore  the  defendant,  at  the  time 
mentioned  in  the  said  declaration,  there  spoke  and  published, 
of  and  concerning  the  plaintiff,  the  said  several  words  in 
the  said  declaration  mentioned,  as  it  was  lawful  for  him  to 
do,  for  the  cause  aforesaid.  And  this  the  defendant  is 
ready  to  verify  ;  wherefore  he  prays  judgment  if  the  plaint- 
it^'  ought  to  have  his  aforesaid  action  against  him,  etc.  [iC) 

Reply  de  injii7'ia,  as  in  No.  229,  ante. 

Other  forms  of  pleas  of  justification  can  readily  be  framed 
from  the  above  precedent,  by  setting  out  the  matter  of  the 
plea    as  in  an  indictment  for  the  offense  charged. 

For  demurrers,  see  demurrers  in  assumpsit ;  and  for 
pleas  of  statute  of  limitations,  release,  former  recover3s 
accord  and  satisfaction,  etc.,  see  titles  of  those  pleas  in 
assumpsit. 

(w)  Whart.  Prec.  of  Indict.  &  Pleas,  190;  Saund   244,  c 


1 


TROVER.  497 

Where  the  action  lies,  etc. 


CHAPTER   IX. 


TROVER. 


Trover  is  a  common-law  action,  in  common  use  in 
England  and  in  many  of  the  states  of  the  Union,  to  recover 
the  value  of  personal  property  wrongfully  converted  by 
another  to  his  own  use.  The  plaintiff  declares,  in  sub- 
stance, that  on  a  certain  day  he  was  lawfully  possessed  of 
a  certain  chattel,  and  casually  lost  the  same  ;  that  it  came 
into  the  possession  of  the  defendant  by  finding ;  and  that 
the  defendant  has  refused  to  deliver  it  to  the  plaintiff,  and 
has  converted  it  to  his  own  use.  This  action  is  one  form 
of  trespass  on  the  case. 

In  the  distant  age  when  it  was  first  used,  the  declaration 
may  have  narrated  accurately  the  facts  of  the  case  ;  but  for 
a  long  time  the  losing  and  finding  have  been  regarded  as 
mere  legal  fictions*  which  the  defendant  is  not  at  liberty  to 
deny. 

Where  the  action  lies. — Trover  lies  for  any  species 
of  goods  and  chattels — as  for  a  horse,  a  ship,  or  anything 
that  can  be  identified  ;  for  a  chose  in  action — as  a  promis- 
sory note,  bank-bill,  bond,  deed  or  mortgage;  for  coins, 
medals,  plants  in  boxes  ;  for  animals  valuable  as  merchan- 
dise, whether  reclaimed  or  not ;  and  for  animals  fcrcB 
natni-cB^  if  reclaimed,  but  otherwise  not. 

Trover  lies  for  manure,  lying  upon  the  ground,  and  not 
incorporated  with  the  soil,  [a] 

(«)  3N.  H.  284;  2  Chip.  116. 
32 


498  TROVER. 

Where  the  action  lies,  etc. 

Trover  may  be  maintained  for  a  promissory  note  which 
lias  been  paid,  and  b}^  a  mistake  left  with  the  holder,  (b) 

It  lies  for  a  promissory  note,  or  a  title-deed,  or  certificate 
of  stock ;  (c)  but  no  person  can  maintain  trover  for  a  chose 
in  action  but  the  legal  owner,  (d)  It  lies  for  a  book  of 
records ;  {e)  for  a  dog ;  (y)  and  for  wild  animals  which 
have  strayed  away  without  gaining  their  natural  liberty,  (g) 

Trover  lies  for  a  building  removed  from  the  freehold,  if 
it  had  been  erected  under  an  agreement  that  it  should  be 
treated  as  personal  property  ;  [/i)  but  it  will  not  lie  for  a  fix- 
ture. (/'). 

The  possession  dona  jlde  of  goods  gives  a  sufficient 
right  to  enable  the  possessor  to  maintain  trover  against  a 
wrong-doer,  (y)  If  the  possession  of  property  is  fraudu- 
lently obtained  from  a  bailee  by  the  general  owner,  the 
bailee  may  maintain  trover  for  the  property,  against  either 
the  owner  or  his  subsequent  vendee.  {Ji) 

Trover  can  not  be  supported  by  one  joint  tenant,  tenant 
in  common  or  parcener  against  his  co-tenant,  for  a  thing 
still  in  the  latter's  possession,  because  the  possession  of  one 
is  the  possession  of  both;  (/)  but  if  the  co-tenant  de- 
stroys {m^  or  sells  the  property,  («)  or  assumes  exclusive 

( J)  9  Vt.  216;  20  N.  Y.  (6  Smith,)  76;  2  Kernan,  (N,  Y.)  313. 

(c)  95  111.  124;  15  Mas^.  389;  19  Ala.  130;  5  Blackf.  419;  i  Piclc.  503;  13 
Ired.  431,  392;  3  Johns.  432;  12  Johns.  347  ;  I  Root,  125;  41  N.  H.  290;  25 
Iowa,  56 ;  75  111,  85 ;  83  III.  215. 

{d)  l\  Mo.  428. 

(<f)  21  Pick.  148;  10  Pick.  172;  21  Vt.  539. 

(/)   I  Metcalf,  555. 

(^)  10  Johns.  102. 

[h)  I  Hill,  176;  33  N.  PI.  429;  39  Maine,  144;  40  Maine,  314;  41  111.  405' 

\i)  3  Nev.  82. 

(/)  4  Blackf.  395 ;  30  Vt.  347;  76  111.  261  ;  35  Ala.  102;  53  Maine,  544. 

{k)  3  Blackf.  419;  13  N.  H.  494. 

(/)  2  Saund.  47,  h ;  2  Johns.  468;  12  id.  484;  15  id.  179. 

{m)  8  T.  R.  146;  2  Saund.  47,  h. 

(«)  II  Ohio,  364 ;  3  Johns,  175  ;  14  lb.  192;  4  East,  121 ;  7  Fng.  C.  L.  145; 
I  Chit.  PI.  144. 


TROVER.  499 

Where  the  action  lies,  etc. 


control  over  it,  (o)  the  other  may  maintain  this  action 
against  him.  By  statute  in  IlHnois,  a  joint  tenant,  tenant 
in  common  or  co-parcener  may  have  his  action  of  trespass 
or  trover  against  his  co-tenant,  if  the  latter  "shall  assume 
and  exercise  exclusive  ownership  over,  or  take  aw^ay,  de- 
stro}^  lessen  in  value,  or  otherwise  injure  or  abuse "  the 
common  property,  (p)  Under  this  statute  it  has  been  held, 
that  trover  ma}'-  be  maintained  for  the  conversion  of  a  prom- 
issory note,  or  the  proceeds  thereof,  although  the  plaintiff 
and  the  defendant  were  jointly  interested  in  the  note,  (q) 

A  sheriff  or  constable,  who  has  seized  goods  on  an  exe- 
cution or  attachment,  has  a  special  property  in  them,  and 
may  maintain  trover  for  them  ;  (r)  but  a  custodian  appointed 
by  such  officer  can  not  maintain  the  action,  (s) 

A  trustee,  with  the  mere  naked  legal  title  to  personal 
property,  may  maintain  trover  for  it.  (/f)  And  a  finder  of 
goods  has  a  sufficient  title  for  this  purpose,  (u) 

Trover  lies  by  an  administrator,  for  a  conversion  in  the 
lifetime  of  his  intestate ;  (v)  and  against  executors  for  a 
conversion  in  the  lifetime  of  their  testator,  (zi/)  A  mort- 
gagor may  maintain  the  action,  (x) 

If  one  employed  to  sell  goods  on  commission  pawns 
them,  the  owner  may  have  trover  after  demand  and  re- 
fusal, (y) 

Trover  lies  against  the  purchaser  and  constable  for  the 

(o)  33  Maine,  347;  8  Mich.  139;  18  Ala.  716. 

(/)  Rev.  Stat.  (1877)  593.     See  13  111.  466;  28  111.  314;  37  111.  442, 

(?)  28  111.  314. 

(r)  Breese,  368;  3  Foster,  (N.  H.)  144;  31  HI.  120;  10  Mich.  433;  47  N. 
H.  164;  1  Pick.  232;  5  Mass.  399;  10  Mass.  125;  i  Pick.  389;  3  Foster,  (N. 
H.)  444;  4  Rich.  233;  6  Halst.  218;  82  111.  117;  88  111.  124. 

(5)  9-Mass.  104,  265;  14  Mass.  217. 

(^)  7  Ired.  41S;  3  Hayw.  152.     See  51  111.  198. 

(«)  3  Ilarring.  68;  35  Ala.  102. 

(z;)  Charlt.  261;  i  Root,  3S9;  6  Mass.  394;  2  Yeates,  537;  i  Rice,  Tdj, 
285;  82  111.  123. 

{7v)   I  Hayw.  21,  308,  362. 

(x)   17  Mich.  302;  70  111.  302;  82  111.  T52. 

(jy)  2  Eng.  C.  L.  471  ;   13  N.  H.  494;  8  Gray,  piass.)  157. 


500  TROVER. 

Where  the  action  lies,  etc. 

landlord's  share  of  a  crop  seized  and  sold  on  execution 
against  the  tenant ;  (z)  and  against  a  carrier  who  by  mis- 
take delivers  goods  to  a  wrong  person,  (a) 

It  lies  against  different  individuals  for  successive  conver- 
sions of  the  same  propert}^,  but  the  plaintiff  can  receive  but 
one  satisfaction,  (d) 

Where  a  part}^  has  been  induced  to  sell  goods  upon  a 
credit,  by  false  and  fraudulent  representations,  he  may  dis- 
affirm the  sale,  and  bring  his  action  of  replevin  or  trover 
for  the  recovery  of  the  property  obtained  by  the  fraud,  or 
damages  for  its  conversion,  (dd) 

The  removal  and  retention  of  the  personal  property  of 
a  stranger,  b}^  an  officer  acting  by  direction  of  the  party, 
is  a  conversion  by  both,  aside  from  any  demand  and  re- 
fusal ;  (c)  but  a  judgment  creditor  is  not  liable  for  a  wrong- 
ful seizure  or  sale  by  the  sheriff  on  the  execution,  which  he 
did  not  direct  or  assent  to.  (d) 

Where  crops  are  raised  on  land,  without  license  or 
authority,  trover  may  be  maintained  by  the  owner  of  the 
land  for  the  recovery  of  the  value  of  such  crops,  (e) 

Trover  will  lie  for  stolen  property,  against  a  purchaser 
thereof,  without  a  prosecution  or  conviction  of  the  thief. 
Markets  overt,,  as  known  to  the  common  law,  are  unknown 
in  Illinois,  {f) 

A  person  who  aids  the  mortgagor  of  personal  property  in 
carrying  it  away  and  concealing  it,  will  be  liable  therefor 

(s)   II   Ohio,  364;  26  Barb.   167;  26  Penn,   154;  Vt.  204;   2  Kelly,   116, 
15  Gray,  512;  98  Mass.  510;  78  III.  62. 
(«)  54  111.  294;  81  111.  143. 
{b)  2  McLean,  145.     See  54  111.  507. 
{bb)  35  111.  222 ;  40  Maine,  578.     See  46  111.  319. 

(c)  17  Conn.  154;  2  Men.  142;  i  Shep.  310. 

(d)  I  Denio,  501;  82  111.  117. 

(e)  15  III-  397-  - 
■(/I   17  111.  413;  I  Cal.  429;  22  Wend,  285  ;  32  Vt.  232  ;  14  Bradw.  444;  4» 

111.  511. 


i 


TROVER.  501 

Where  the  action  lies,  etc. 

to  the  mortgagee  in  an  action  of  trover,  even  though  he 
was  ignorant  of  the  existence  of  the  mortgage,  {g") 

Parties  may  be  sued  in  an  action  of  trover,  though  there 
was  no  joint  conversion  in  fact.  A  joint  conversion  may  be 
imphed  in  law,  by  the  consent  of  a  partner  to  the  acts  of 
his  co-partner,  (k) 

Where  the  defendant  received  oxen  from  the  plaintiff,  to 
be  kept  until  a  particular  time,  and  before  the  expiration  of 
the  time  sold  a  portion  of  them,  it  was  held  that  the  plaintiff 
was  entitled  to  recover  the  value  of  the  oxen  at  the  time  of 
their  conversion  by  the  defendant.  (/) 

Trover  will  lie  against  one  partner  who  converts  to  his 
own  use  property  which  has  been  entrusted  to  his  firm  for 
manufacture.  (J) 

A  wife  is  jointly  liable  with  her  husband  for  a  tort ;  and 
trover  lies  against  both  for  a  joint  conversion.  (X-) 

Driving  a  hired  horse  a  greater  distance  than  is  agreed, 
or  in  a  different  direction,  will  be  a  conversion.  (/) 

If  a  bailee  for  a  special  purpose  uses  the  property  for 
another  purpose,  without  leave  of  the  owner,  he  is  liable 
as  for  a  conversion  ;  yet  this  should  be  understood  only  of 
such  an  use  as  occasions  an  injury  or  damage  ;  and  the 
damage  or  injury,  and  not  the  value  of  the  property,  would 
be  the  measure  of  the  damages  to  be  recovered,  if  the 
property  is  returned.  Where  no  injury  is  sustained,  only 
nominal  damages  can  be  recovered.  Such  an  use  of  prop- 
erty by  a  bailee  as  is  without  detriment  to  the  bailor,  does 
not  amount  to  a  conversion,  (w) 

(^•)  8  Foster,  (N.  II.)  34;  98  Mass.  510;  39  N,  Y.  441. 

(//)  52  111.  20. 

(«■)  21  111.  iiS;  30  Vt.  307. 

(/)24lll.  4S3. 

(A)  41  III.  405;  51  111.  198. 

(/)  5  Mass.  104;  3  Pick.  492;  5  Foster,  67;  2  Wend.  137;  4  E.  D.  Smith, 
(N.  Y.)  397;  II  Rich.  Law,  (S.  C)  405;  31  Ala.  26;  5  Duer,  49;  15  Graj, 
306. 

(w)  4  Scam.  ^95;  16  Vt.  13S.  390;  2  Wend.  137;  44  Maine,  491 ;  36  N.  H. 
311:33  Barb.  (N."y.)  213. 


502  TROVER. 


Where  the  action  lies,  etc. 


In  trover  for  the  unlawful  seizure  of  goods,  the  fact  that 
the  plaintiff'  may  have  reclaimed  them,  or  that  they  may 
have  been  returned,  does  not  go  in  bar  of  the  action,  but 
merely  in  mitigation  of  damages,  (n) 

Where  the  cattle  of  one  person  break  into  the  inclosure 
of  another,  and  eat  and  destroy  the  growing  crop  of  the 
latter,  his  remedy  is  not  trover,  but  trespass,  {o) 

Conversion  is  the  ^/5^  of  the  action.  It  consists  in  any 
tortious  act  by  which  the  defendant  deprives  the  plaintiff 
of  his  goods,  either  wholly  or  for  a  time.   (J)) 

Cutting  growing  corn,  and  carrjnng  it  away,  will  be  a 
conversion  of  it  sufficient  to  sustain  trover,  (q) 

There  may  be  a  conversion  by  a  wrongful  taking  of  per- 
sonal property  ;  by  some  illegal  assumption  of  ownership  ; 
by  illegal]}^  using  or  misusing  property  ;  or  by  its  wrongful 
detention.  If  a  person  fraudulently  sues  out  a  writ  of  re- 
plevin, and  thereby  obtains  possession  of  property,  and  then 
dismisses  his  suit,  it  will  be  an  illegal  taking  and  assump- 
tion of  ownership  of  the  property,  and  a  sufficient  proof  of 
conversion,  rendering  a  demand  unnecessary  to  sustain  an 
action  of  trover,  (r) 

The  wrongful  assumption  of  the  property  in,  or  the  right 
to  dispose  of  the  goods,  may  be  a  conversion  in  itself,  and 
render  unnecessary  a  demand  and  refusal,  (s) 

If  a  person  has  a  lien  on  property  for  a  special  purpose, 
and  applies  it  to  another  purpose,  it  is  a  waiver  of  the  lien, 
and  a  conversion.  (/)     And  if  a  person,  having  a  lien  on 

(«)  6  Ind.  374;  I  Hilton,  (N.  Y.)  207;  11  Mo.  219;  17  Pick,  i;  i  Mo. 
506;  5  Barr.  211 ;  10  Mass.  125,  128;  5  Mass.  104;  6  Ind.  374. 

(o)  53  111.  241. 

(p)  2  Saund.  46,  47,  n. ;  2  Starkie  Ev.  842;  12  Mod.  519;  3  Stephen's 
N.  P.  2704;  27  Ala.  228;  2  Strobh.  Eq.  370;  52  111.  249. 

(^)  15  Mass.  204;  5  Barb.  364. 

(r)  42  111.  34.     See  48  111.  492 ;  3  Vroom,  517. 

(5)  6  East,  540;  7  Johns.  254;  5  Cowen,  323;  19  Johns.  66;  3  Stephen's 
N.  P.  2681 ;  44  Maine,  147;  9  Ala.  S61 ;  47  Maine,  506;  i  Chit.  PI.  141. 

(/)  4  Blackf.  396;  39  N.  H.  23S;  30  Vt.  307;  9  Bosw.  322.  See  4  Scam. 
495- 


TROVER.  503 

Where  the  action  lies,  etc. 


propert}^  upon  being  requested  to  deliver  it  up,  claims  to  re- 
tain it  on  a  different  ground  from  that  upon  which  he  rests 
his  lien,  he  waives  such  lien,  (ti)  as  well  as  any  tender  of 
charges,  (v) 

In  trover,  a  demand  and  refusal  of  the  property  are  evi- 
dence of  a  conversion,  conclusive  if  not  rebutted  or  ex- 
plained, (w) 

Where  one  of  two  joint  owners  of  personal  property  de- 
mands of  the  other,  not  the  joint  use  and  possession,  as  joint 
owner,  but  the  property  as  sole  owner,  the  latter  is  at  en- 
tire liberty  to  disregard  such  a  demand.  To  make  a  de- 
mand available  under  such  circumstances,  the  party  making 
it  should  demand  the  equal  enjoyment  of  the  property  as 
joint  owner,  (x) 

Where  there  is  a  tortious  taking,  or  an  actual  conversion, 
no  demand  is  necessary,  (y) 

An  adulteration  of  liquor  by  a  carrier, or  his  servant,  will 
be  a  conversion  of  it.  (z) 

The  fraudulent  mixing,  by  one  person,  of  his  own  goods 
with  the  goods  belonging  to  another,  in  such  a  manner  that 
the  property  of  each  can  no  longer  be  distinguished,  con- 
stitutes a  confusion  of  goods,  if  the  goods  mixed  are  of  un- 
equal value  ;  and  the  innocent  party  is  entitled  to  the  whole, 
and  may  maintain  trover  for  them  against  a  purchaser  in 
good  faith,  (a) 

(m)  I  Camp.  410;  3  Stephen's  N.  P.  2694,  3705;  10  Foster,  (N.  H.)  164; 
I  Bailej,  193 ;  Anthon,  loi ;  40  Vt.  199. 

(v)  I  Camp.  410;  2  M.  &  S.  29S;  3  Camp.  472,  473;  1  Bailej,  193;  3 
Stephen's  N.  P.  26S1 ;  n  Rich.  Law,  (S.  C.j  267;  2  Grant's  Cases,  (Penn.) 
393;  3  Hurl.  &Nor.  931. 

(xu)  9  Cush.  14S;  3  Stark.  Ev.  1161;  3  Stephen's  N.  P.  26S7 ;  2S  Barb. 
(N.  Y.)  75;  16  Conn.  71.  See  18  Pick.  27S;  2  JMass.  ^98;  30  Barb.  276;  ? 
Md.  148;  42  111.  34;  88  111.  215;  15  Bradw.  532, 

(x)  37  111.  442. 

(y)  92  111  218;  22  Pick.  18;  12  Cal.  4S3 ;  ly  Conn.  319  ;  10  Humph.  16;  41 
N.  H.  326;  I  Chit.  PI.  141. 

(2)   14  Mass.  500;  S  Pick.  551  ;  I  Rice,  240;  2  Hanini^.  71. 

(a)  30  Maine,  237  ;  2  Kent's  Com.  365  ;  2  Elackf.  377;  30  Maine,  295  ;  95 
111.  124;  14  Bradw.  443;  106  111.  281. 


504  TROVER. 

Where  the  action  lies,  etc. 

Possession  of  property,  with  a  claim  of  title  adverse  to  that 
of  the  true  owner,  is  sufficient  evidence  of  conversion,  (b) 

A  demand  and  refusal,  or  an  actual  conversion,  must  be 
shown,  in  order  to  maintain  an  action  of  trover;  (c)  but  if 
property  is  illegally  taken  and  detained,  it  is  a  conver- 
sion, (d) 

When  goods  or  choses  in  action  have  been  pledged  to 
secure  the  pa^^ment  of  a  debt,  before  the  owner  can  rein- 
vest himself  with  the  right  to  resume  possession  of  the 
property,  he  must  pay  the  debt,  or  at  least  make  a  suffi- 
cient tender,  (e) 

A  refusal  by  the  possessor  to  deliver  goods  to  the  owner, 
on  pretense  that  they  belong  to  another,  is  evidence  of  a 
conversion.  (J") 

If  a  bailee  gives  a  sufficient  reason  for  not  delivering  the 
goods  on  a  demand,  his  refusal  so  to  deliver  will  not 
amount  to  a  conversion,  (g) 

A  common  carrier  is  liable  in  trover  for  losing  goods  ;  (A) 
but  a  mere  delay  in  delivery  by  a  carrier  is  not  a  conver- 
sion of  the  property.  (?) 

Trover  lies  against  an  officer  for  goods  sold  on  execu- 
tion which  are  by  law  exempt  from  such  sale;  (j)  or 
against  an  officer  who  seizes  property  by  virtue  of  process, 
and  sells  it  without  notice ;  (k)  or  where  he  seizes   the 

(6)   8  Geo.  61.  See  52  111.  249. 

(<r)  15  Bradw,  532;  37  111.  442;  42  111.  34;  82  111.  1 17-152;  75  111.  85;  68 
111.  297. 

{d)   13  B.  Mon.  236  ;  33  N.  H.  151  ;  19  Conn.  319;  56  111.  152. 

(s)   34  111.  508 ;  2  Blackf.  465. 

(/)  4  Blackf.  395;  20  Ark.  583;  28  Baib.  75;  5  Harring.  256;  2  E.  D. 
Smith,  (N.  Y.)  335 ;  2  Md.  261  ;  34  Conn.  398. 

(-/)   1  Ind.  276;  28  Barb.  515. 

(/^)  17  Pick.  I  ;  I  Pick.  50;  4  Wend.  613;  3  Mo.  359;  54  111.  294. 

(?)  28  Barb.  (N.  Y.)5i5. 

(/)  133  Mass.  154;  91  U.  S.  618;  81  111.  511  ;  9  BraJw.  48;  54  111.  295  :  33 
111.  185;  76  111.  542. 

{k)   I  Slew.  176;  3  N.  H.  144. 


TROVER.  505 

Where  the  action  lies,  etc. 

property  of  one  person  on  a  writ  of  execution  against  an- 
other. (/) 

By  statute  in  Illinois,  trover  may  be  maintained  for  money 
or  other  valuable  thing  lost  at  gaming  .  (w) 

Wherever  trespass  de  bonis  asportatis  will  lie,  trover  may 
be  sustained.  (11) 

One  trespasser  or  wrong  doer  can  not  maintain  trover 
against  the  other,  i^o) 

In  an  action  of  trover  and  conversion,  as  in  an  action  of 
ejectment,  the  plaintiff  must  recover  on  the  strength  of  his 
own  title,  without  regard  to  the  weakness  of  that  of  his  ad- 
versary. It  is  a  possessory  action,  and  the  plaintiff  must 
show  that  he  has  either  a  special  or  general  property  in  the 
thing  converted,  and  the  right  to  its  possession.  (/>) 

To  support  the  action  of  trover,  the  plaintiff  must  prove 
a  right  of  possession  in  himself,  and  a  conversion  of  the 
property  by  the  defendant  at  a  time  when  the  right  of  pos- 
session existed  in  the  plaintifl';  {q)  but  it  is  not  necessary 
that  the  plainlifl"'s  interest  in  the  goods  should  have  condn- 
ued  until  the  commencement  of  the  suit ;  (r)  and  to  show  a 
conversion,  it  must  be  made  to  appear  that  the  defendant 
has  had  actual  or  virlual  possession  of  the  goods.  (^) 

Wliere  a  siierilf  sells  the  property  of  a  partnership,  as  the 
individual  properly  of  one  partner,  on  a  writ  of  execudon 
against  such  partner  individually,  he  is  liable  in  trover  to 

(/)  1  Dlackf.  94;  iS  Vt.  590;  z  Blatch.  C  C.  552;  4  Foster,  237;  16  Ala. 
698542  N.  11.  3S6. 

{m)  Rev.  Stat.  (1877)  369;  85  111.  491  ;  55  111.  451. 

(«)  6  Mass.  20;   14  Pick.  376;  2  Hair,  i ;  23  Wend.  462. 

'o)  6  Mo.  583. 

(/)  31  III.  120;  4  Minn.  242;   14  Cal.  250;   10  Mich.  433;  2  Bradwell, 602. 

{q)  4  Blackf.  317;  2  Blackf.  395,  465  ;  7  Blackf.  361 ;  68  lU.  297;  31  III. 
120;  82  111.  125,  152,  409. 

(r)  6  Blackf.  209;  13  Barl).  641. 

{s)  4  Blackf.  317;  6  Barb.  436. 


So6  TROVER. 

Commencement  of  the  action — Prascife. 

the  other  partner  therefor  ;  and  plaintiff  is  entitled  to  recover 
the  value  of  his  individual  share  in  the  property  so  sold, 
without  regard  to  the  state  of  the  partnership  accounts,  {ti) 
Trespass  may  also  be  maintained  in  such  case,  {v) 

In  an  action  of  trover  by  the  bailee  of  a  chattel,  or  one 
having  a  special  property  therein,  against  the  real  owner, 
the  plaintiff  can  recover  his  special  property  only ;  but  if 
the  action  is  against  a  stranger,  the  bailee  is  entitled  to  re- 
cover the  full  value  of  the  article,  and  he  holds  the  sum  re- 
covered, less  the  amount  of  his  special  interest,  in  trust  for 
the  general  owner,  to  whom  he  is  responsible,  {w) 

The  judgment  for  the  plaintiff, in  an  action  of  trover,  is  for 
the  full  value  of  the  property  at  the  time  of  the  conver- 
sion, {x)  and  for  interest  from  that  time,  {y)  When  prop- 
erty is  restored,  not  depreciated  in  value,  it  goes  in  mitiga- 
tion of  damages,  (z) 

COMMENCEMENT   OF   THE   ACTION. 

An  action  of  trover  is  commenced,  like  most  other  ac- 
tions at  law,  by  suing  out  a  summons,  or  capias;  and  in 
certain  cases  security  for  costs  is  required,  {a) 

K  praecipe  may  be  filed,  in  the  following  form  : 

In  the Court  of  the  County  of ,  in  the  State  of 

Illinois. 

A.  B.  ^ 
vs.     >     Trespass  on  the  case  (trover). — Damages  $ — -. 

C.  D.  ) 

The  clerk  of  the  said  court  will  issue  a  summons  {or 
^^  capias  ad  respondendum^^) ^  as  above,  directed  to  the  sher- 

(«)  3  Denio,  (N.  Y.)  125. 

(v)  20  Ala.  212  ;  12  Cal.  275  ;  3  Duer,  (N.  Y.)  45. 

(w)  13  111.  466;  5  Binn.  457 ;  7  Cow.  670;  15  Conn.  302 ;  iS  Pick.  278. 
(«)  12  111.  99;  17  Pick.  I ;  29  Maine,  419. 

(^)  12  111.99;   17  Pick,  i;   29  Maine,  419;  4  Pick.  466;   io  Ala.  694;   3 
Steph.  N.  P.  271 1 ;  30  Vt.  307 ;  19  Mo.  467 ;  21  Mo.  294. 
(^r)  4  Pick.  466;  I  Hilton,  (N.  Y.)  207. 
id)  Ante,  39. 


I 


TROVER.  507 

The  declaration. 


iff  of  the  county  of ,  and  returnable  to  the  term, 

18—. 

{Date) . 

E.  F.,' Attorney  for  Plaintiff. 

To ,  Clerk,  etc. 


The  declaration. — The  declaration  in  this  action  al- 
leges that  the  plaintiff  was  possessed  of  certain  goods, 
(describing  them,)  as  oi  his  own  property,  and  that  they 
came  to  the  possession  of  the  defendant  by  finding,  and 
that  he  converted  them  to  his  own  use.  The  conversion  is 
the  gist  of  the  action.  The  finding  is  not  traversable,  {b) 
and  it  would  probably  be  sufficient  to  allege  generally  that 
the  goods  came  to  the  hands  of  the  defendant,  [c) 

In  actions  for  injuring,  taking  away  or  converting  goods, 
it  is  in  general  necessary  that  the  species,  the  quantity  or 
number,  and  the  value  of  the  goods  should  be  alleged.  It 
is  however  sufficient  in  trover  (as  in  trespass  and  case)  to 
describe  the  goods  as  "  twenty  chairs,"  "two  ricks  of  ha}^" 
etc.,  without  specifying  them  more  particularly,  (d)  But  a 
declaration  in  trover  for  "  divers  goods  and  chattels"  would 
be  substantially  bad ;  {e)  and  a  declaration  for  ' '  ten  articles 
of  household  furniture,"  or  "ten  articles  of  wearing  ap- 
parel," is  also  bad  on  general  demurrer,  {y)  Care  should 
be  taken  not  to  include  in  the  declaration  articles  of  prop- 
erty which  can  not  be  recovered  in  this  form  of  action,  lest 
after  a  general  verdict  for  the  full  amount  claimed,  and 
judgment  thereon,  such  judgment  should  be  reversed  on 
error,  {g) 

If  the  plaintiff  desires  to  claim  for  special  damage,  that 

{b)  1  Chit.  PI.  (II  Am.  ed.)  161. 
(c)  01.  Prec.  467. 

id)  I  Cliit.  PI.  (11  Am.  ed.)  37S.     See  2  Saund.  333,  n.  7;  2   Saund.  74, 
n.  I ;  46  N.  H.  160. 

(e)  I  Chit.  PI.  (II  Am.  ed.)  377;  7  Taunt.  642;  i  Moor,  S.  C.  3S4. 
(/)  S  Moore,  379. 
(^)  30  111.  43. 


5o8  TROVER. 


General  form  of  declaration. 


is,  damage  not  necessarily  consequent  to  the  conversion, 
he  must  charge  such  special  damage  in  his  declaration,  [h) 

A  declaration  in  trover  will  be  sustained,  although  no 
amount  is  expressed  in  the  ad  damnum  clause,  [t)  But 
in  Maryland  it  has  been  decided  that  damages  must  be 
claimed,  or  the  judgment  will  not  be  supported  in  the  court 
of  appeals.  {J) 

Counts  in  case  and  trover  may  be  joined  in  the  same  ac- 
tion, {k)  And  by  statute  in  Illinois,  counts  in  trover  and 
jeplevin  may  be  joined.  (/) 

]Vo.  231.      General  /"orm  of  declaration  in  trover. 

In  the Court. 

Term,  18 — . 

State   of   Illinois, 


County  of ,       5  set.     A.  B.,  plaintiff,  by  E.  F., 

his  attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of 
trespass  on  the  case  :  For  that  whereas  the  plaintiff,  on, 
etc.,  in  the  county  aforesaid,  was  lawfully  possessed,  as  of 
his  own  property,  of  certain  goods  and  chattels,  to  wit, 

{here  describe  the  -profcrty,)  of  the  value  of dollars  ; 

and  being  so  possessed  thereof,  the  plaintiff  afterwards,  to 
wit,  on  the  day  aforesaid,  there  casually  lost  the  said  goods 
and  chattels  out  of  his  possession,  and  the  same  afterwards, 
to  wit,  on  the  same  day,  there  came  to  the  possession  of  the 
defendant  by  finding  :  Yet  the  defendant,  well  knowing 
the  said  goods  and  chattels  to  be  the  property  of  the  plaint- 
iff, has  not  as  yet  delivered  the  same,  or  any  or  either  of 
them,  or  any  part  thereof,  to  the  plaintiff,  although  often 
thereto  requested,  but  has  hitherto  refused  so  to  do,  and 
afterwards,  to  wit,  on  the  same  day,  there  converted  and 
disposed  of  the  said  goods  and  chattels  to  his  own  use  : 
To  the  damage  of  the  plaintiff' of dollars,  and  there- 
fore he  brings  his  suit,  etc. 


(//)  2  Bing.  N.  C.  310;  7  C.  &  p.  804. 
(/)  23  III.  618.     See  Breese,  401. 
(/)  18  Md.  468. 

{k)  I   Chit.  PI.  181;   9  Pick.   156,  161;    I    Humph.  199;    i  Term,  277 
Saund.  117,  b  ;  30  Ala.  562. 

(/)  Rev.  Stat.  (1874)  853;  Rev.  Stat.  (1877)  811.     See  20  111.  286. 


i 


TROVER.  509 

Declaration  by  executor. 

In  trespass  for  taking  "goods,  chattels  and  effects,^'  it 
has  been  held,  the  plaintiff  may  recover  the  value  of  sev- 
ered fixtures,  but  not  so  if  for  taking  "  goods  and  chattels" 
only,  {in) 

If  the  action  is  brought  for  a  note,  bill  of  exchange,  bond 
or  other  writing,  describe  it  by  its  date,  amount,  the  time 
when  payable,  parties,  etc.,  as  nearly  as  may  be.  {n)  But 
it  seems  it  is  not  necessary  to  state  the  date  of  a  writing.  (<?) 

In  trover  for  a  note,  an  omission  to  allege  its  value  can 
only  be  reached  by  special  demurrer.  (^) 

The  property  should  be  described  to  be  of  some  value,  [q) 

No.  232.     By  an  executor .,  for  a  conversion  in  the  lifetime 
of  the  testator. 

{Title  of  court.,  etc.,  as  in  last  -precedent i)  A.  B., 
plaintiff,  executor  of  the  last  will  and  testament  of  E.  F., 
deceased,  complains  of  C.  D.,  defendant,  of  a  plea  of 
trespass  on  the  case  :  For  that  whereas  the  said  E.  F. 
in  his  lifetime,  to  wit,  on,  etc.,  in,  etc.,  was  lawfully 
possessed,  as  of  his  own  property,  of  divers  goods  and 
chattels,    to    wit,    {describe   the   -property^    of   the    value 

of  dollars  ;   and  being  so  possessed  thereof,   he  the 

said  E.  F.,  in  his  lifetime,  afterwards,  to  wit,  on  the 
day  aforesaid,  there  casually  lost  the  said  goods  and  chat- 
tels out  of  his  possession,  and  the  same  afterwards,  and 
in  the  lifetime  of  the  said  E.  F.,  to  wit,  on  the  same 
day  aforesaid,  there  came  to  the  possession  of  the  defend- 
ant by  finding  :  Yet  the  defendant,  well  knowing  the  said 
goods  and  chattels  to  be  the  property  of  the  said  E.  F, ,  in 
his  lifetime,  and  of  right  to  belong  to  him,  and  to  the 
plaintiff,  as  executor  as  aforesaid,  after  the  decease  of  the 
said  E.  F.,  did  not  deliver  the  said  goods  and  chattels,  or 
any  or  either  of  them,  or  any  part  thereof,  to  the  said  E. 
F.,  in  his  lifetime,  nor  has  the  defendant  as  yet  delivered 
the  same,  or  any  or  either  of  them,  or  any  part  thereof,  to 

{in)  4  B.  &  A.  206;  2  Chit.  PL  835,  n. 

C«)  I  South.  211  ;  3' Watts,  333.     See  2  Chit.  PI.  835. 

(0)  I  Wils.  116;  Bac.  Abr.  Tro.  F.  i ;  2  Chit.  PI.  S35,  n. 

[f)  10  IMo.  302. 

{q)  4  B.  &  A.  271.     But  sec  2  Bouv.  Die.  606. 


510  TROVER. 

Declaration  by  executor — Observations. 

the  plaintifF,  executor  as  aforesaid,  since  the  death  of  the 
said  E.  F.  (ahhough  often  requested  so  to  do) ;  (*)  and  the 
defendant  afterwards,  and  in  the  lifetime  of  the  said  E.  F., 
to  wit,  on  the  same  day  aforesaid,  there  converted  and  dis- 
posed of  the  said  goods  and  chattels  to  his  own  use  :     To 

the  damage  of  the  plaintiff',  as  executor  as  aforesaid,  of 

dollars,  and  therefore  he  brings  his  suit,  etc.  And  the 
plaintiff"  brings  into  the  court  here  the  letters  testamentary 
to  him  granted,  whereby  it  fully  appears  to  the  court  here 
that  the  plaintiff"  is  executor  of  the  said  last  will  and  testa- 
ment of  the  said  E.  F.,  deceased,  and  has  the  execution 
thereof,  etc. 

[If  the  suit  is  by  an  administ7'ator ,  com^nence  as  in  No. 
12,  ante,  -page  79,  and  make  -profcrt  of  letters  as  in  same 
form.) 

If  the  trover  was  in  the  lifetime  of  the  testator  or  intes- 
tate, but  the  conversion  after  his  death,  then  in  lieu  of  the 
clause  immediately  following  the  asterisk  in  the  above 
form,  insert  the  words:  "and  the  defendant  afterwards, 
and  after  the  death  of  the  said  E.  F.,  to  wit,  on,  etc.,  there 
converted  and  disposed  of  the  said  goods  and  chattels  to 
his  own  use." 

If  the  action  is  brought  by  an  administrator,  in  that 
capacity,  the  property  may  be  alleged  in  the  intestate, 
whether  the  conversion  was  before  or  after  his  death,  if  be- 
fore administration  granted ;  but  if  any  one  takes  property 
belonging  to  the  estate,  after  administration  granted,  the 
administrator  may  declare  on  his  own  possession,  (r) 

If  the  trover  was  first,  and  the  administration  afterwards, 
the  plaintiff"  may  declare  specially,  or  lay  trover  after 
the  administration  ;  (5)  for  an  executor  has  a  constructive 
possession  of  the  goods  from  the  time  of  the  testator's 
death,  {t)  The  property  of  the  goods  draws  to  it  a  pos- 
session in  law,  and  therefore  an  executor  may  declare  on 
his  own  possession  "as  executor,"  though  in  fact  he  never 

{r)  01.  Prec.  467.     See  i  T.  R.  480. 
(5)  Comb.  304 ;  Mod.  Ent.  366. 
(t)  I  T.  R.  480;  01.  Prec.  470. 


TROVER.  511 

Defenses — Pleas  in  bar. 

has  had  possession,  (zt)  In  trover  by  an  administrator, 
where  the  property  is  laid  in  the  intestate,  evidence  is  not 
admissible,  under  the  general  issue,  to  dispute  the  plaintift^s 
representative  character ;  but  it  is  otherwise  as  to  a  count 
on  the  plaintiff's  possession,  (v) 


DEFENSES    IN    TROVER. 

For  pleas  in  abatement,  see  the  precedents  in  assump- 
sit, (w)  which,  with  very  little  variation,  can  be  made  ap- 
plicable to  this  form  of  action. 

Pleas  in  bar. — In  trover  the  general  issue  is  "not 
guilty,"  and  it  is  not  usual  in  this  action  to  plead  any  other 
plea,  except  the  statute  of  limitations,  and  a  release,  (x) 
The  defendant  may  however  plead  specially  anything 
which,  admitting  the  plaintiff  had  once  a  cause  of  action, 
goes  to  discharge  it.  Thus  a  release  may  be  pleaded,  as 
before  observed  ;  accord  and  satisfaction  ;  arbitrament  and 
award  ;  and  a  former  recovery  for  the  same  conversion,  (y) 
Pleas  attempting  \o  justify  are  inconsistent  with  the  admis- 
sion of  a  conversion,  and  amount  to  the  general  issue,  {z) 

A  precedent  is  given  in  Chitty's  Pleading,  vol.  3,  page 
1040,  of  a  plea  to  an  action  of  trover,  brought  by  an  admin- 
istrator, that  the  grant  of  administration  was  void,  because 
not  made  by  the  proper  authority. 

The  plaintiff  is  compelled  to  prove  his  property,  general 
or  special,  in  the  goods  ;  possession,  actual  or  constructive  ; 
and  such  an  unlawful  disposition  of  them  by  the  defendant 

(«)  2  Saund.  47,  k;  10  East,  293;  2  Taunt.  ti6;  2  Chit.  PI.  840,  n. 

{v)  2  M.  &S.  554;  2  Saund.  47,  k;  2  Ld.  Raym.824;  2  Chit.  PI.  (11  Am. 
ed.)  839;  I  lb.  489. 

(w)  Ante,  150-161. 

(.v)  I  Chit.  PI.  436.     See  10  Johns.  291. 

\y)  1  Tidd's  Pr.  598.     See  Steph.  PI.,  2  App.  n.  \\. 

{z)  I  Kcb.  305;  10  Johns.  2SS;  Steph.  PI.,  2  App.  u.  14.  But  see  i  Chit. 
PI-  435- 


512  TROVER. 

Pleas  in  bar. 

as  amounts  to  a  conversion.  Any  evidence  to  rebut  this 
proof,  in  any  particular,  may  be  given  under  the  general 
issue,  (a) 

A  plea  in  trover,  that  the  goods  had  been  consigned  by 
the  plaintiff  to  tile  defendant  on  commission,  and  the  latter 
had  sold  them  pursuant  to  the  plaintiff's  order,  is  bad,  as 
amounting  to  the  general  issue,  (d) 

So  a  plea  to  an  action  of  trover  for  a  buggy,  that  it  had 
been  delivered  to  the  defendant  upon  a  contract  of  bailment 
for'  hire,  and  that  it  had  been  destroyed  by  accident,  with- 
out the  fault  of  the  defendant,  is  bad  for  the  same  reason,  {c) 

A  plea  in  trover  for  bank-notes,  that  the  defendant,  as 
cashier  of  a  bank,  received  them  from  the  holder  on  special 
deposit,  is  bad  ;  and  no  special  plea  in  bar  of  the  action  can 
be  good,  unless  it  confesses  and  avoids  the  conversion,  (d) 

The  right  of  the  plaintiff  to  maintain  trover  is  put  in 
issue  by  the  plea  of  "not  guilty  ;"  (e)  and  under  this  plea 
the  defendant  may  show  a  right  of  entry  for  rent  in  arrear, 
under  which  he  entered,  distrained  and  sold,  (y) 

In  this  action,  a  plea  of  property  in  a  third  person  is 
bad.  (g-)  Evidence  of  such  matter  may  be  given  under 
the  general  issue,  (/i) 

The  plea  of  "not  guilty"  puts  in  issue  not  merely  the 
conversion  in  fact,  but  the  wrongful  conversion.  (/) 

In  trover  for  furniture,  by  the  assignee  of  a  bankrupt, 
the  defendant  justified  the  seizure  under  a  judgment  and 
execution   against  the   goods   of  the  bankrupt  before  his 

(a)  Stephen's  PL,  2  App.  n.  14;  3  Hill,  87;  4  Minn.  242;   10  Mich.  433; 
14  Cal.  250.     See  31  111.  120. 
(3)  10  Johns.  288,  289. 

(r)  Career  v.  Tarns,  Dist.  Ct.  Phila.  1836,  MS. 
(^)4Blackf.  395. 

(e)  4  Blackf.  396;  19  Wend.  463;  3  Head,  (Tenn.)  iS. 
(/)  3  Cal.  275 ;  3  Hill,  87.     See  Gould's  PI.  319. 
(^)  19  Wend.  469;  II  Wend.  54;  lo  Wend.  389;  9  Gill,  7. 
(k)  II  Johns.  529;  II  Wend.  54.     See  Gould's  PI.  319. 
(/)  3  Eng.  Law  &  Eq.  540. 


TROVER.  513 

Plea  of  not  guilty,  etc. 


bankruptcy  ;  and  it  was  held  on  demurrer,  that  the  plea  was 
bad,  as  amounting  to  "not  guilty."  (J) 

In  trover,  upon  the  general  issue,  the  plaintiff  must  re- 
cover on  the  strength  of  his  own  title,  and  not  on  the 
weakness  of  that  of  his  adversary,  (k) 

It  seems  that  where  a  special  plea  is  pleaded  which  only 
amounts  to  the  general  issue,  the  exception  may  be  taken 
either  by  motion  (/)  or  by  special  demurrer,  [m) 

Accounts  can  not  be  adjusted,  nor  a  set-off  be  allowed, 
in  an  action  of  trover.  («) 

It  has  been  held  that  a  defendant  can  plead  to  an  action 
of  trover,  in  justification,  that  he  had  a  special  property  in 
the  goods,  or  a  lien  thereon,  {0)  but  the  weight  of  the  au- 
thorities is  afjainst  it. 

A^o.  233.     Plea  of  not  guilty — General  isstie. 

In  the Court. 

Term,  18 — . 

C.  D.  ^ 
ats.     >  Trover. 

A.  B.  )  And  the  defendant,  by  E.  F.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  he  is  not  guilty  of  the  said  supposed  grievances 
above  laid  to  his  charge,  or  any  or  either  of  them,  in  man- 
ner and  form  as  the  plaintiff  has  above  thereof  complained 
against  him  :  And  of  this  the  defendant  puts  himself  upon 
the  country,  etc. 

Under  the  plea  of  "  not  guiltjs"  the  plaintiff  must  prove  : 

(»  3  Eng.  C.  L.  &  Eq.  540. 

(*)  4  Ind.  146;  31  111.  120;  10  Mich.  433;  14  Cal.  250. 

(/)  Cro.  Eliz.  147:  Hob.  127;  Winch.  zo\  i  Frcem.  39;  2  Day,  431 ;  Yelv. 
174,  b,  4  Scam.  411. 

(w)  ID  Johns.  289;  5  Cow.  466;  13  111.  133;  14  III.  237;  4  Scam.  411;  4 
Blackf.  395;  36  Miss.  53;  20  111.  557;  25  111.  317;  6  McLean,  401 ;  15  Pick. 
317,  219;  8  Ind.  256;  6  Mass.  342;  7  Ind.  526. 

(«)  12  111.  99.     See  2  Caine's  Cas.  200. 

ip)  Tidd's  N.  P.  330;  3  Geo.  4;  2  Bing.  N.  C.  755. 

33 


514  TROVER. 


Reference  to  forms. 


(i)  Property  in  himself,  either  general  or  special,  {f)  and 
a  right  of  possession  at  the  time  of  the  conversion.  (2)  A 
conversion  of  the  thing  by  the  defendant  to  his  own  use ; 
and  whether  the  defendant  originally  came  to  the  possession 
of  the  thing  by  right  or  by  wrong,  is  not  material.  If  by 
right,  a  demand  and  refusal  must  be  proved,  unless  there 
was  an  actual  conversion.  (3)  The  value  of  the  goodj  11 
the  time  of  the  conversion,  [q) 

In  trover,  if  the  plaintiff  recover,  he  is  entitled  to  the  full 
value  of  the  property  converted,  with  interest  from  the  time  ot 
the  conversion,  (r) 

The  measure  of  damages  in  trover  for  a  note,  is  the  amount 
due  on  its  face,  unless  it  is  proved  to  be  of  less  value,  {s) 
and  interest  from  its  maturity  to  the  time  of  conversion,  and 
interest  on  the  aggregate  from  that  time  to  the  time  of  the 
verdict.  (/) 

For  pleas  of  the  statute  of  limitations,  release,  accord  and 
satisfaction,  etc.,  and  for  demurrers,  see  the  same  subjects  in 
Assumpsit. 

(/)  I  Term,  56  ;  2  Saund.  47  a,  1047  k,  n.  (l);  2  Blackf.  865  ;  2  N.  H.  66  5 
7  J.  J.  Marsh.  410  ;  7  I'ort.  279  ;  4  Blackf.  317;  31  Hi.  120. 

(17)  5  Eng.  211  ,  2  Hill,  fS.  C.)  792.     As  to  conversion,  see  42  111.  34. 

(;-)  12  111.  9y;  21  111.  I  iS  ;  69  111.  32-  57  111.  451 ;  2  Greenl.  Ev.  sections  276, 

649;  ^^2,  ^f'^ss-  154. 
{s)  I  Co  wen,  240. 
(/)  7  l\.rter,  466.     See  also  2  Rawle,  241. 


REPLEVIN. 


515 


Nature  of  action. 


CHAPTER  X. 


REPLEVIN. 


The  institution  of  the  action  of  replevin  is  ascribed  to 
Glanvil,  Chief  Justice  to  Henry  H,  and  it  was  originally 
the  peculiar  and  exclusive  remedy  in  cases  of  wrongful 
distress  for  rent,  or  of  cattle  damage  feasant.     The  object 
was  to  prevent  the  beasts  of  the  plough,  cattle,  and  other 
goods  of  the  tenant  in  arrear  from  being  unjustly  or  ex- 
cessively distrained  by  the  landlord,  lest,  as  Littleton  ob- 
serves, "the  husbandry  of  the  realm  and  men's  other  trades 
might  thereby  be  overthrown  or  hindered."     At  the  com- 
mon law,  a  distress  was  considered  merel}^  as  a  pledo-e  or 
security  for  the  rent,  or  damages,  or  for  service  due  from 
the  tenant  to  his  superior  lord,  and  a  means  of  enforcing 
payment  or  performance  thereof.     The  property  could  not 
be  sold  or  disposed  of  by  the  distrainor,  but  he  was  com- 
pelled to  hold  it  as  a  pledge  until  payment  or  other  satis- 
faction was  made.     The  law  was  altered  in  this  respect,  in 
England,  by  statute  2  William  and  Mary,  (a.  d.   1691,) 
which  authorized  the  distrainor,  with  the  assistance  of  the 
sheriff,  to  have  the  distress  appraised  by  competent  ap- 
praisers, and    sold  for  the  highest  price  which   it  would 
bring,  unless  regularly  replevied  by  the  tenant  or  owner 
within  five  days  after  seizure.     There  were  two  ways  in 
which  a  distress  could  be  replevied,  one  according  to  the 
common  law,  and  the  other  by  statute.     The  common  law 
allowed  the  owner  a  writ  of  rcplcgiarf  facras,  which  was 
sued  out  of  the  chancery,  and  directed  to  the  sheriff  of  the 
county  in  which  the  distress  was  taken,  commanding  him 
to  redeliver  it  to  the  owner,  and  afterwards  to  do  justice  in 


SiC  REPLEVIN. 

Nature  of  action. 

respect  of  the  matter  in  dispute,  in  his  county  court.  The 
statute  of  Marlbridge,  52  Henry  III,  (a.  d.  1268,)  pro- 
vided that  if  the  beasts  of  any  man  were  taken  and  wrong- 
fully withheld,  the  sheriff  should,  upon  complaint  made  to 
him  thereof,  deliver  them  to  the  owner  "without  let  or  gain- 
saying of  him  who  took  the  beasts."  The  owner  was  re- 
quired to  first  give  security,  (in  pursuance  of  the  statute  of 
Westm.  2,)  similar  to  the  bond  required  by  statute  in  Illi- 
nois and  other  states.  The  original  writ  of  reflcgiari  fa- 
cias was  thus  dispensed  with  ;  and  the  proceeding  upon  a 
complaint  made  to  the  sheriff,  under  the  statute,  was  called 
a  proceeding  by  "plaint."  The  statute  of  Illinois  provides 
that  the  proceedings  in  an  action  of  replevin  shall  be  com- 
menced by  -plaint^  and  the  word  has  the  same  meaning 
that  it  had  in  regard  to  proceedings  under  the  statute  of 
Marlbridge.  It  signifies  that  there  is  to  be  a  complaint 
made  that  the  goods  were  wrongfully  taken,  or  are  wrong- 
fully detained. 

The  statute  of  Illinois  requires  the  plaintiff,  or  some  one 
in  his  behalf,  to  make  oath  or  affirmation  that  he  is  the 
owner  of  the  property  about  to  be  replevied,  or  that  he  is 
then  lawfully  entitled  to  the  possession  thereof,  and  that  the 
same  has  not  been  taken  for  any  tax,  assessment  or  fine 
levied  by  virtue  of  any  law  of  the  state,  nor  seized  under 
any  execution  or  attachment  against  the  goods  and  chat- 
tels of  such  plaintiff,  liable  to  execution  or  attachment,  [a) 
It  has  been  usual  to  file  an  affidavit,  and  to  allege  therein 
that  the  goods  and  chattels  were  wrongfully  taken,  or 
wrongfully  detained ;  and  in  that  manner  the  plaint  men- 
tioned in  the  statute  has  been  usually  made,  ip) 

The  primary  purpose  of  the  action  is  to  recover  property 
in  specie — not  its  value,  {e) 

(a)  Rev.  Stat.  (1874)  851;  Rev.  Stat.  (1877)  809. 

{b)  34  111.  436. 

(c)  55  Penn.  St.  176. 


REPLEVIN.  517 


Where  the  action  lies,  etc. 


Where  the  action  lies,  etc. — The  action  of  replevin  lies 
for  the  recover}^,  in  specie,  of  any  personal  chattel  which 
has  been  taken  and  detained  from  the  owner's  possession, 
together  with  damages  for  the  detention  ;  unless  the  taking 
and  detention  can  be  justified  or  excused,  or  the  right  of 
action  is  suspended  or  discharged,  id) 

It  lies  at  common  law,  not  only  for  goods  distrained,  but 
for  goods  taken  and  unjustly  detained  for  any  other  cause 
whatever ;  except  that,  where  goods  are  taken  b}^  process 
of  law,  the  party  against  whom  the  process  issued  can  not 
replevy  them  ;  but  if  the  goods  of  a  sti^anger  to  the  process 
are  taken,  he  may  replevy  them  from  the  sheriff,  {e) 

By  statute  in  most  of  the  states  of  the  Union,  replevin 
may  be  brought  whenever  goods  or  chattels  have  been 
wrongfully  distrained,  or  otherwise  wrongfully  taken,  or 
are  wrongfully  detained. 

If  a  chattel  is  sold  by  a  borrower  of  it,  the  owner  may 
recover  it,  in  an  action  of  replevin,  of  whomsoever  he  may 
find  in  possession  of  it.  {f) 

Where  a  purchase  of  goods  is  effected  by  means  of  false 
and  fraudulent  representations  on  the  part  of  the  buyer,  the 
seller  may  treat  the  sale,  though  on  credit,  as  void,  and 
maintain  replevin,  {g)  without  any  previous  demand.  {Ji) 

Where  a  person  operating  a  ferry  unlawfully  seizes  a 
boat  belonging  to  a  rival  ferry,  for  an  alleged  encroach- 
ment upon  his  franchise,  the  person  aggrieved  may  recover 
his  boat  by  an  action  of  replevin.  (?) 

Where  a  person  had  agreed  to  make  three  wagons  for 
another,  within  a  limited  time,  it  was  held  that  it  was  a 
general  contract,  and  that  no  title  passed  on  the  completion 

(a')  2  Greenl.  Ev.,  sec,  560;  14  Bradw.  480. 

ie)  76  111.  479;  So  Hi.  553;  89  111.  161  ;  Gilb.  on  Rep.  141 ;  20  Johns.  470;  2 
Gieenl.  Ev.,  sec.  560. 

(/)  5  Ohio,  202;  17  Ark.  154;  lo  Mich.  357. 

{g)   35  111-  222;  76  111.  345;  79  111,  92;  60  111.  190;  19  Bradw.  620. 

(/«)  40  Maine,  578;  15  Bradw.  493;  115  111.  490. 

(0  34  111.  74. 


5i8  REPLEVIN. 

Where  the  action  lies,  etc. 

of  the  wagons,  without  a  delivery,  and  therefore  an  action 
of  replevin  would  not  lie  to  recover  them.  [J) 

Where  a  minor  makes  an  exchancre  of  a  horse  belonijinij 
i-o  his  father,  and  the  father  apparently  acquiesces  in  the 
bargain  for  a  considerable  time  after  it  has  been  made,  he 
can  not  recover  the  horse  his  son  has  exchanged,  in  an 
action  of  replevin,  {k) 

If  a  person  seeks  to  maintain  an  action  of  replevin  for  a 
steam  saw-mill  building,  with  all  the  machinery,  etc. ,  belong- 
ing to  the  same,  he  should  at  least  aver  in  his  plaint  and 
declaration  that  the  property  in  question  is  personal  estate. 
The  statute  of  Illinois  gives  the  remedy  of  replevin  where 
goods  or  chattels  are  wrongfully  taken  or  detained  from  the 
owner,  or  the  person  entitled  to  their  possession.  Pj-hna 
facie,  a  building  is  real  estate,  and  belongs  to  the  owner 
of  the  land  on  which  it  stands ;  and  such  is  the  presump- 
tion, even  where  a  building  is  erected  by  one  man  upon 
the  land  of  another.  The  legal  effect  of  putting  it  upon 
another's  land  is  to  make  it  part  of  the  realty.  But  a  build- 
ing may  be  personal  estate,  and  the  property  of  another 
than  the  owner  of  the  freehold :  as  where  it  is  erected  by 
the  builder,  with  his  own  means,  and  for  his  exclusive  use, 
in  pursuance  of  an  understanding  between  him  and  the 
owner  of  the  inheritance ;  and  so  where  it  is  erected  by  a 
tenant  on  demised  premises,  for  purposes  of  trade  or  man- 
ufacture. In  such  cases  the  building  is  regarded  as  per- 
sonal property,  and  may  be  removed  by  the  owner  thereof, 
or  sold  on  execution  against  him,  and  at  his  death  it  passes 
to  his  personal  representatives.  (/) 

The  owner  of  land  may  bring  replevin  for  chattels 
severed  from  it,  where  there  was  no  adverse  possession, 
but  not  if  the  land  is  held  adversely.     He  can  not  assert 

(/)  14  111.  378  ;  31  Ala.  495;  47  Maine,  109;  71  111.  105. 

{k)   17  111.  83. 

(/)  .16  111.  150;  4  Zeb.  (N.  J.)  2S7.  See  34  III.  522;  SS  111.  107. 


REPLEVIN.  519 


Where  the  action  lies,  etc. 


his  title  to  the  land  in  that  manner,  {in)  Consistently  with 
this  rule,  a  landlord  may  bring  replevin  for  chattels  wrong- 
fully severed  from  the  freehold  by  a  tenant,  as  the  title  to 
the  land  is  not  thereby  drawn  in  question,  (w) 

A  purchaser  of  a  city  lot,  holding  it  under  a  contract  of 
purchase,  with  clauses  of  forfeiture,  erected  a  house  thereon, 
placed  upon  blocks  lying  on  the  ground  ;  and  having  failed 
to  make  his  payments  on  the  contract,  he  sold  the  house  to 
a  person  who  removed  it  from  the  lot.  The  vendor  of  the 
lot  then  replevied  the  house.  Held,  that  the  vendee,  while 
occupying  the  premises  under  his  contract,  had  no  right  to 
erect  a  building  thereon  with  intent  to  remove  it ;  that  such 
intent  would  be  in  fraud  of  his  vendor's  rights  ;  that  the 
purchaser  of  the  building  stood  in  no  better  position,  and 
when  he  severed  the  house  from  the  freehold  the  right 
of  possession  attached  to  the  owner  of  the  freehold,  who 
could  maintain  replevin  so  long  as  the  house  could  be 
identified,  and  was  not  permanently  annexed  to  other 
realty,  (i?) 

Replevin  can  only  be  supported  for  taking  personal  chat- 
tels, and  not  for  taking  things  attached  to  the  freehold,  and 
which  are  in  law  considered  fixtures,  and  can  not  be  de- 
livered to  the  plaintiff,  or  to  the  defendant  upon  a  writ  of 
rctorno  habendo.  (_^)  Hence  it  does  not  lie  for  trees 
growing ;  but  if  they  are  cut  down  by  a  stranger,  who 
converts  them  into  posts  and  rails,  the  action  may  be  main- 
tained, {q) 

Where  the  property  is  left  with  a  person  who  has  ad- 
vanced money  upon  it,  and  is  to  keep  it  until  he  shall  be 
reimbursed,  he  may  replevy  it  from  one  who  attaches  it  as 

(w)  34  111.436;  13  111.  192;  I  Smith's  Lead.  Cas.  4S5;  Willes,  131;  2 
McCord,  329;  S  Cow.  220. 

(«)  22  Vt.  205;  10  Cal.  258;  12  N.  H.  558;  34  111.  436,  522. 

(o)  34  111.  522.     See  13  III.  192  ;  16  111.  1^.9. 

(/)  8  Cowen,  220;  17  Johns.  116.     Sec  34  III.  436. 

'q)  2  Rawle,  423;  2  Watt.  126;  11  Wend.  137;  34  111.  436;  35  Barb.  (N. 
7.)  58;  I  Chit.  PI.  146. 


520  REPLEVIN. 


Where  the  action  lies,  etc. 


a  creditor  of  the  pledgor;  (r)  and  unless  it  is  made  to  ap- 
pear that  the  attaching  party  was  really  a  creditor,  he  can 
not  complain  that  it  was  a  design  to  protect  the  property 
of  the  debtor.  The  writ  of  attachment  does  not  of  itself 
show  that  the  party  in  it  was  debtor  of  the  plaintiff.  It 
only  shows  that  the  officer  who  made  the  attachment  acted 
in  behalf  of  an  assumed  creditor.  (5) 

A  person  who  consents  that  grain  left  in  a  warehouse  may 
be  put  in  bulk  with  other  grain,  with  the  understanding 
that  a  like  quantity  and  quality  shall  be  delivered  to  him 
on  request,  can  not  maintain  replevin  for  the  grain.  If  the 
intermixture  of  grain  was  without  the  consent  of  the  bailor, 
or  was  the  wrongful  act  of  the  warehouseman,  it  might 
be  otherv/ise.  (/) 

If  there  is  confusion  of  goods  by  reason  of  intermixture, 
(by  consent  of  the  owners,)  so  that  each  owner  can  not 
distinguish  his  property,  each  will  have  a  proportionate 
interest  in  the  whole.  Replevin  lies  for  specific  property, 
capable  of  identification  and  an  actual  return,  not  for  an 
undivided  interest  or  share,  (u) 

If  a  person  sells  goods  to  another,  and  delivers  them, 
although  the  purchaser  is  to  give  a  note  with  security  for 
the  goods,  at  a  future  day,  a  sale  by  the  purchaser  will  be 
good,  and  the  buyer  from  him  in  good  faith  will  hold  the 
goods  against  the  first  vendor,  (v) 

Warehousemen  have  a  lien  on  property  stored  with  them, 
for  proper  charges,  and  may  retain  possession  of  the  prop- 
ert}'-  to  secure  paj'^ment  of  such  charges,  (w) 

It  has  been  held  in  Indiana,  that  if  the  plaintiff  in  an 
action  of  replevin  is  nonsuited,  he  is  not  thereby  barred 
from  bringing  another  action,  the  statute  of  Westm.  2,  c.  2, 

{r)  26  111.  188. 

(s;  26  111.  488;  6  Mich.  397. 

(/)  18  111.  2S6.  See  31  111.  283. 

(«)  iS  111.  286;  2  Mass.  511. 

(f)  21  111.  330. 

(w)  18  111.  286.  See  34  111.  508. 


REPLEVIN.  521 


\\'here  the  action  lies,  etc. 


prohibiting  a  second  replevin  after  a  nonsuit,  being  local 

to  England,  and  not  in  force  in  that  state,  {x)     In  Illinois 

<-^e  plaintiff  may  plead,  to  a  suit  brought  upon  the  replevin 

lond,  that  the  merits  were  not  tried  in  the  replevin-suit,  {y) 

Where  one  wrongfully  sues  out  a  writ  of  replevin,  and 
dismisses  the  suit,  he  illegally  takes  and  assumes  owner- 
ship of  the  property ;  and  in  such  a  case  the  owner  may 
maintain  replevin  for  the  property,  and  is  not  confined  to 
the  lemedy  on  the  bond.  The  first  replevin- suit  does  not 
change  the  ownership  of  the  property,  (z) 

The  general  ownership  of  property  is  not  necessarily  de- 
termined in  replevin,  but  the  right  of  possession  is.  {a) 

Replevin  lies  for  books  of  records,  (d)  and  to  recover  the 
books  of  a  corporation  which  are  wrongfully  detained,  (c) 
It  may  be  brought  to  recover  possession  of  a  deed  which  is 
withheld  from  a  person  in  whom  the  title  to  the  land  thereby 
conveyed  is  vested,  (d) 

In  general,  it  lies  for  any  tortious  or  unlawful  taking  of 
the  property  of  another,  or  whenever  trespass  de  bom's  as- 
■portatis  can  be  sustained,  (e) 

Replevin  lies  for  a  swarm  of  bees  ;  (_/")  and  for  the  in- 
crease of  an  animal,  though  the  increase  was  after  the 
taking,  (o-)  It  will  not  lie  for  animals  ferce  naiuroe,  and 
unreclaimed,  {k) 

Money  in  a  box,  or  leather  made  into  shoes,  if  sufficiently 
identified,  may  no  doubt  be  recovered  in  replevin.     When 

(*)  3  Blackf.  415.     See  7  Cush.  560. 
(y)  Gross  Stat.  570. 
(z)  42  l\\.  34. 

(«)  18  111.  83 ;  4  Iowa,  557 ;  5  Ohio,  92. 
{b)  II  Pick.  492;  21  Pick.  148. 
(c)  5  Ind.  165 ;  35  Barb.  (N.  Y.)  502. 
id)  32  111.  34S. 

(e)  ID  Wend.  322,  349;  12  Wend.  32;  10  Johns.  369;  15  Mass.  156;  3  Serg 
&  Rawle,  562. 

(/")  F.  N.  B.  68;  Morris  on  Replevin,  54: 

{g}  F.  N.  B.  69;  Sid.  82;  Morris  on  Replevin,  54. 

(//)  2  Roll.  Abr.  430;  Morris  on  Replevin,  54. 


<;22  REPLEVIN. 


Whcmaj  maintain  the  action,  etc. 


property  has  undergone  an  alteration,  a  new  right  of  ac- 
tion arises  to  reclaim  it  by  replevin  in  that  shape  which  it 
has  assumed.  And  in  such  case  it  should  be  described  in 
the  writ  as  it  existed  at  the  time  of  the  commencement  of 
the  suit,  {i) 

A  person  may  maintain  replevin  for  boards  made  from 
trees  wrongfully  cut  on  his  land,  and  taken  away.  And  it 
is  a  general  principle  that  the  owner  of  property  wrong- 
fully taken  may  pursue  it  so  long  as  it  can  be  identified, 
unless  it  is  annexed  to  or  made  part  of  some  other  thing, 
which  is  the  principal — as  lumber  put  into  a  house.  (/ ) 

If  property  or  choses  in  action  have  been  pledged  to  se- 
cure a  debt,  the  owner  must  pay,  or  at  least  tender,  the 
amount  due,  before  he  can  claim  the  right  to  resume  pos- 
session of  the  property,  or  bring  replevin  for  its  recov- 
ery, {k) 

Where  property  is  sold  and  delivered  to  the  purchaser,  a 
part  of  the  price  being  paid  and  the  residue  to  be  paid  in 
installments,  the  vendor  can  not  maintain  replevin  for  such 
property,  upon  the  refusal  of  the  purchaser  to  make  further 
payment — on  the  ground  that  the  property  is  not  such  as 
he  bargained  for — without  refunding  the  money  already 
paid.  (/) 

The  question  of  the  validity  of  a  tax  can  not  be  consid- 
ered in  an  action  of  replevin.  (/«) 

Who  7nay  maintain  the  action. —  It  is  not  necessary,  in 
order  to  maintain  this  action,  that  the  plaintiff  should  be 
the  owner  of  the  property.  He  must,  however,  have  either 
the  general  property  in  the  goods  taken  or  detained,  or  a 

(/)  7  Cowen,  95 ;  5  Johns.  348  ;  20  Maine,  287. 

(7)  13  111.  192  ;  29  Penn.  522  ;  2  Barb.  613  ;  7  Shep.  2S7  ;  11  Iowa,  533  ;  34 
111.  436- 

(/(■)  34  111.  50S;  2  Greenl.  Ev.,  sec.  64  8;4  Mees.  &  Wels.  270;  15  111.  362, 

365- 
(/)  54  111.  370. 
(w)   53  III.  177;  39  111.  117;  21  Iowa,  56;  Rev.  Stat.  (1877)  809. 


REPLEVIN.  523 


Who  maj  maintain  the  action,  etc. 


special  property  therein,  (n)  And  it  makes  no  difference 
whether  the  claimant's  propert}^  in  the  goods  is  absolute  or 
qualified,  (0)  or  whether  he  has  ever  had  the  possession  or 
not,  {;p)  if  he  has  the  right  of  possessic^n.  He  must  how- 
ever have  at  least  a  special  property  in  the  goods  claimed,  (g) 
Thus  a  mere  custodian,  (r)  or  receiptor  to  an  officer  or  any 
other  bailee  for  safe  keeping,  (5)  or  a  m.ere  servant,  who 
has  charge  of  goods  as  such  only,  (/)  can  not  maintain  re- 
plevin. 

The  plaintiff"  must  have  had  a  right  to  the  possession  of 
the  propert}^  at  the  time  of  the  taking  or  detention,  (tc)  If 
he  has  not  the  immediate  right  of  possession,  the  action  can 
not  be  supported,  (v)  but  he  must  proceed  by  an  action  on 
the  case,  (w) 

One  joint  owner  of  a  chattel  can  not  maintain  replevin 
against  the  other,  (x) 

A  father,  as  the  natmal  guardian  of  his  children,  where 
they  have  no  other  guardian,  may  maintain  the  action  for 
their  property,  {y) 

If  it  was  understood  and  intended  that  the  title  to  the  prop- 

(«)  20  Wend.  234;  6  Binn.  3;  i  Hemp.  10;  23  Penn.  16S;  2  Pike,  315;  4 
Blackf.  304;  ID  Mo.  277;  1  Chit.  PI.  (11  Am.  ed.)  163. 

(o)  Gilb.  119;  15  Pick.  63;  id.  i68;  3  Pick.  255;  12  Wend.  30;  24  Pick- 
25  ;  6  Wis.  343  ;  6  Clarke,  223 ;  18  Penn.  91 ;  43  Mo.  13S. 

(/)  24  Pick.  25  ;  9  id.  441  ;  7  Term,  9;  11  Wend.  137;  12  td.  30;  2  BlackC 
172;  2  Ohio,  82;  3  Eng.  510;  25  Ark.  4S2. 

(^)  5  Dane's  Dig.  516;  7  Hill,  126. 

(r)  3  S.  &  R.  20;  9  Mass.  109;  i  Johns.  3S0. 

(5)  5  Mass.  303 ;  18  Pick.  427. 

{i^  3  Serg.  &  Rawie,  20. 

(a)  15  Mass.  310;  15  Pick.  63;  2  Blackf.  174;  4  Blackf.  304;  3  Shep.  373; 
24  Pick.  42;  I  Chit.  PI.  (11  Am.  ed.)  163;  2  Pike,  315;  10  Mo.  277;  28  I'd^ 
95 ;  4  Duer,  (N.  Y.)  201  ;  7  Jones'  Law,  (N.  C.)  251 ;  44  Maine,  374. 

(w)  I  Chit.  PI.  (11  Am.  ed.)  163,  a;  3  Pick.  255;  15  Pick.  63;  3  Shepley, 
373- 

(w)  I  Chit.   PI.  (ii  Am.  ed.)  263,  a;  7  Term,  9. 

(x)  I  Har.  &  Gill,  308;  12  Conn.  331 ;  12  Pick.  324;  35  Penn.  432;  12 
Allen,  30;  37  III.  2S1;  4  Ind.  169;  92  111.  315;   14  Bradw.  441,  4S0. 

(j)  I  Har.  &  Johns.  147. 


524  REPLEVIN. 

Against  whom  may  be  brought,  etc. 

ert}'  should  pass  without  any  further  action  of  the  parties 
purchasing  and  selhng,  then  the  purchaser  may  maintain 
replevin,  whether  the  goods  had  been  delivered  to  htm  or 
not.  [z) 

But  where  a  contract  was  made  to  sell  so  many  bushels 
of  corn,  more  or  less,  to  be  delivered  within  a  specified 
time,  and  a  small  sum  was  paid  to  bind  the  bargain,  it  was 
held  that  the  buyer  had  no  right  to  replevy  corn  in  the  pos- 
session of  the  seller,  on  the  failure  of  the  latter  to  perform 
the  contract.  The  only  remedy  of  the  buyer  was  an  action 
on  the  contract.  («) 

A  mortgagee,  {b)  or  assignee  of  a  chattel  mortgage,  (c) 
upon  condition  broken,  may  maintain  replevin.  But  if  it 
is  agreed  that  the  mortgagor  shall  retain  possession  for  a 
stipulated  time,  the  mortgagee  can  not  maintain  the  action 
until  such  time  has  expired,  {d)  One  who  has  bought  and 
receipted  for  goods,  at  a  sheriff's  sale,  is  the  owner  of  such 
goods,  and  may  replevy  them,  {e) 

An  officer  may  maintain  replevin  against  a  custodian 
who  refuses  to  deliver  goods  entrusted  to  him  by  the  officer  ; 
and  the  custodian  can  not  set  up  title  in  himself.  {/) 

In  Illinois,  and  some  other  states,  a  married  woman  may 
sue  alone,  in  replevin,  to  recover  her  separate  property,  {g) 
even  against  her  husband,  iji) 

Who  may  be  made  defendant. — In  general,  any  one  in 
possession  of  goods  may  be  made  defendant.     If  goods  are 

{z)  21  111.  526. 

fa)  13  III:  467.     See  14  111.  37S;  31  Ala.  495;  i  Ind.  551 ;  24  Penn.  14. 

{b)  I  Hill,  473;  8  Dana,  26S;  17  Barb.  446;  11  Wis  375;  12  id.  243.  See 
47  Maine,  520. 

(c)  37  III.  164. 

{d)  3  Shepley,  373. 

(e)  20  111.  429;  4  Harr.  62;  2  Browne,  160. 

(/)  3  Ilill,  215 ;  6  Harr.  388;  10  Ohio,  (N.  S.)  4S8.     See  8  Wis.  315. 

{J)  50  111.  481  ;  II  Penn.  272;  13  Penn.  4S0;  16  Penn.  134;  5  J.  J.  Marsh. 
^3o;  15  Texas,  278. 

(//)  32  III.  493  ;  50  111.  481.  See  44  111.  58;  47  111.  22  ;  51  111.  5^5  ;  53  HI- 
[63. 


REPLEVIN. 


^^D 


Demand,  when  necessary,  etc. — Commencement  of  the  action. 

taken  hy  one  person  at  the  request  of  another,  the  action 
may  be  maintained  against  either  or  both.  (?) 

Demand,  when  necessary . — If  the  possession  of  the 
property  claimed  has  been  obtained  by  delivery,  or  other- 
wise lawfully,  a  demand  and  refusal  are  necessary  before 
bringing  suit.  (_/')  The  demand  may  be  made  by  one  who 
stands  in  loco  parentis  to  the  claimant.  {Jc) 

Where  the  possession  of  goods  has  been  wrongfully  ob- 
tained, no  demand  is  necessary.  (/) 


COMMENCEMENT    OF    THE    ACTION. 

The  statute  of  Illinois  provides,  that  "  The  person  bring- 
ing such  action  shall,  before  the  writ  issues,  file  with  the 
clerk  of  the  court  in  which  the  action  is  brought,  *  -  * 
an  affidavit  showing  that  the  plaintiff  in  such  action  is  the 
owner  of  the  property  described  in  the  writ,  and  about  to  be_ 
replevied,  or  that  he  is  then  lawfully  entitled  to  the  possession 
thereof,  and  that  the  property  is  wrongfully  detained  by  the 
defendant ;  and  that  the  same  has  not  been  taken  for  any 
tax,  assessment  or  fine  levied  by  virtue  of  any  law  of  the 
state,  nor  seized  under  any  execution  or  attachment  against 
tlie  goods  and  chatties  of  such  plaintiff,  liable  to  execution 
or  attachment,  nor  held  by  virtue  of  any  writ  of  replevin 
against  such  plaintiff."  (;«)  It  is  usual  to  file  an  affidavit  in 
writing.     The  affidavit  may  be  in  the  following  form : 

\^i)  Gilb.  162;  6  En<T.  475.     See  20  Bradw.  396. 

(/)  13  111-  315;  3  ^cam.  579;  35  111.  417;  54  111.  370;  47  Maine,  520;  4 
Greene,  306;  3  Hill,  348;  24  Pick.  211 ;  20  Wend.  234.  See  15  III.  224;  77 
111.  513;   II  Bradw.  206. 

{k)  23  111.  427. 

(/)  14  111.  466;  35  111.  417;  42  111.  18;  78  111.  513,  332;  II  Bradw.  459; 
20  Bradw.  296;   109  111.  15. 

(w)  2  Starr  &  Curtis'  An.  Stat.  2012;  Rev.  Stat.  (1877)  p.  809.  See  34  III. 
439;  19  111-  274;  69  111.  299,  533;  76  111.  479. 


526  REPLEVIN. 


Affidavit,  etc. 


N'o.  234.     Affidavit  in  Replevin 
State  of  Illinois, 


CO 

County  of .       f      '  A.  B.  of,  etc.,  on  oath,  states, 

that  he  is  the  owner  of  {or  lawfully  entitled  to  the  possession 
of)  the  following  described  goods  and  chatties,  to-wit :  {Here 

describe  the  property)  of  the  value  of dollars;  and  that 

the  said  property  is  wrongfully  detained  by  one  C.  D.  of,  etc.; 
and  that  the  same  has  not  been  taken  for  any  tax,  assess- 
ment or  fine  levied  by  virtue  of  any  law  of  this  state,  nor 
seized  under  any  execution  or  attachment  against  the  goods 
and  chatties  of  him,  the  said  A.  B.,  liable  to  execution  or 
attachment,  nor  held  by  virtue  of  any  writ  of  replevin 
against  him,  the  said  A.  B. 

A.  B 
Subscribed  and  sworn  to,  etc. 


There  is  no  necessity  of  any  other  averments  in  the  affi- 
davit than  those  prescribed  by  the  statute.  (//)  But  such  as 
are  prescribed  must  be  made  in  full  and  positive  terms,  when 
made  by  the  plaintiff,   [o) 

''  When  the  affidavit  is  made  by  any  person  on  behalf  of 
the  plaintiff,  the  same  may  be  made  upon  the  information 
and  belief  of  the  affiant."  {p) 

The  statute  does  not  require  the  plaintiff  in  replevin  to 
state  the  value  of  the  property  to  be  replevied.  The  sheriff 
must  ascertain  and  fix  the  value,  {q) 

An  affidavit  in  replevin  may  be  amended  ;  (r)  but  appli- 
cation to  amend  should  be  made  in  apt  time.  A  motion  to 
dismiss  for  want  of  a  sufficient  affidavit,  comes  too  late  after 


[n)   19  111.  274;  85  111.  248. 

(0)  13  111.  120;  16  Mich.  40;  I  Gilm.  35;  39  111.  117. 

(/)  2  Starr  &  Curtis'  An.  Stat.  2012 ;  Rev.  Stat,  (1877)  Sio;  14  Bradw.  449. 
(V)  85  111.  248. 

(r)   13    111.    122;   I  Gilm.    35,  37;   I   Hill,  204;   19  Wead.  632;  20  Wend. 
673;  43  111.  494;  5  Bradw.  396. 


REPLEVIN.  527 


Declaration,  etc. — Count  in  trover,  etc. 


a  party  has  appeared  and  pleaded.  (5)  Such  application 
to  amend  an  affidavit  is  addressed  to  the  discretion  of  the 
court,  {t) 

No.  235.     Declaration  in  replevin. 

In  the Court. 

Term,  18 — . 

State  of  Illinois, 


County  of ,      5  set.      A.  B.,    plaintiff,    by   E.  F., 

his  attorney,  complains  of  C.  D.,  defendant,  of  a  plea 
wherefore  he  took  the  goods  and  chattels  of  the  plaintiff, 
and  unjustly  detained  the  same,  until,  etc.  :     For  that  the 

defendant,  on  the day  of  ,  in  the  year  18 — ,  in 

the  county  aforesaid,  took  the  goods  and  chattels,  to  wit, 
{here  describe  the  property,)  of  the  plaintiff,  of  the  value 
of dollars,  and  unjustly  detained  the  same,  until,  etc. 

{Second  count, yor  detaining,  etc.)  And  also  wherefore 
the  defendant  unjustly  detained  the  goods  and  chattels  of 
the  plaintiff,  until,  etc.  :     For  that  the  defendant,  on  the 

day  of ,  in  the  j^ear  18 — ,  in  the  county  aforesaid, 

other  the  goods  and  chattels  of  the  plaintiff,  to  wit,  {here 
describe  the  property,)  of  the  value  of dollars,  un- 
justly detained,  until,  etc. 

Wherefore  the  plaintiff  sa3^s  that  he  is  injured,  and  hai^ 
sustained  damage  to  the  amount  of dollars,  and  there- 
fore he  brings  his  suit,  etc. 

In  Illinois,  if  the  goods  described  in  the  writ  of  replevin 
can  not  be  found  by  the  officer,  the  plaintiff  may  declare  in 
trover,  and  if  there  is  personal  service,  recover  the  value 
of  the  goods,  with  damages  for  the  wrongful  taking  or  de- 
tention, and  costs,  {u)  If  a  part  only  is  found,  a  count  in 
trover  may  be  joined  for  the  residue,  {v)  which  count  may 
be  as  follows  : 

(5)  1  Gilm,  35;  5  Hill,  119;  2  Hill,  657;  i  Hill,  204. 
(/)  39  111.  117;  2  Starr  &  Curtis'  An.  Stat.  2016;  Rev.  Stat.  (1877)  Si  I. 
{n)  2  Starr  &  Curtis'  An.  Stat.  2015  j    Rev.  Slat.  (1S77)  81 1;  91  111.  II. 
(z/)  lb.;  20  111.  212;  24  111.  580. 


52S  REPLEVIN. 


Count  in  trover — Defenses — Plea  of  ton  cepit,  etc. 

JVo.  236.      Count  in  t)-ovcr,  to   be  inserted  zvhen   -part  of 
goods  could  not  be  7'eplcvzcd. 

And  also  for  that  whereas  the  plaintiff,  on  the  day  last 
aforesaid,  in  the  county  aforesaid,  was  lawfully  possessed, 
as  of  his  own  property,  of  certain  other  goods  and  chattels, 

to  wit,  {here  describe  the  property ^^  of  the  value  of  

dollars ;  and  being  so  possessed  thereof,  the  plaintiff  after- 
wards, to  wit,  on  the  same  day,  there  casually  lost  the  last- 
mentioned  goods  and  chattels  out  of  his  possession,  and  the 
same  afterwards,  to  wit,  on  the  same  day,  there  came  to 
the  possession  of  the  defendant  by  finding  :  Yet  the  de- 
fendant, well  knowing  the  last-mentioned  goods  and  chat- 
tels to  be  the  property  of  the  plaintiff,  has  not  as  yet 
delivered  the  same,  or  any  or  either  of  them,  or  an}'-  part 
thereof,  to  the  plaintiff,  though  often  thereto  requested,  but 
has  hitherto  refused  so  to  do,  and  afterwards,  to  wit,  on  the 
same  day,  there  converted  and  disposed  of  the  last-men- 
tioned goods  and  chattels  to  his  own  use. 

Care  should  be  taken  to  describe  the  property  correctly, 
lest  there  should  be  a  variance  between  the  proof  and  the 
declaration,  (w) 

DEFENSES  TO  THE  ACTION. 

For  pleas  in  abatement,  etc.,  see  the  precedents  in 
Assumpsit. 

Pleas  in  bar. — Properl}^  speaking,  there  is  no  general 
issue  in  the  action  of  replevin  ;  {x)  because  there  is  no  plea 
which  alone  puts  in  issue  the  whole  of  the  declaration. 

No.  237.     Plea  of  NON  cepit. 

In  the Court. 

Term,  18 — 

C.  D.  ^ 

ats.     >  Replevin. 
A.  B.  )     And  the  defendant,  by  G.   H.,  his  attorney, 
comes  and  defends  the  wrong  and  injur}'',  w  len,  etc.,  and 

(w)  35  111-  567- 

(«)  38  111.  282 ;  Wilk.  49;  I  Gilm.  365 ;  4  Scam.  440. 


REPLEVIN. 


529 


Plea  of  non  cepi't,  etc. 


says  that  he  did  not  take  the  goods  and  chattels  in  the  said 
declaration  mentioned,  or  any  or  either  of  them,  or  any 
part  thereof,  in  manner  and  form  as  the  plaintiff  has  above 
thereof  complained  against  him  :  And  of  this  the  defend- 
ant puts  himself  upon  the  country,  etc. 

The  plea  of  non  ccp/t,  at  common  law,  where  the  gist 
of  the  action  consists  in  the  tortious  taking  of  the  plaintiff's 
goods  by  the  defendant,  is  said  to  be  the  general  issue  in 
replevin,  {y)  It  merely  puts  in  issue  the  taking  of  the 
goods,  and  admits  the  property  to  be  in  the  plaintiff;  and 
if  the  defendant  succeeds  thereon,  he  will  not  be  entitled 
to  a  return  of  the  goods,  {z)  A  finding  for  him,  on  that 
issue,  merely  protects  him  from  damages. 

To  entitle  the  defendant  to  a  return  of  the  goods  re- 
plevied, he  must  contest  the  plaintiff's  right  to  the  property  ; 
and  this  he  may  do  by  pleading  specially  property  in  him- 
self, or  in  a  stranger,  or  in  the  plaintiff  and  himself,  as 
bailor  and  bailee,  or  that  he  took  the  cattle  damage  feasant, 
or  the  goods  for  tolls,  customs,  or  services,  as  w^ell  as  for 
many  other  causes  ;  and  he  may  have  a  return  until  his  de- 
mands are  satisfied,  {a) 

To  a  declaration  or  count  charging  only  a  wrongful  de- 
tention of  the  goods  of  the  plaintiff,  the  plea  of  non  cefit 
is  inapplicable,  and  would  be  declared  bad  on  demurrer, 
or  might  be  stricken  out,  or  disregarded,  at  the  plaintifi^'s 
election,  as  presenting  an  immaterial  issue,  {b) 

If  therefore  there  are  several  counts  in  the  declaration, 

(j)  2  Greenl.  Ev.,  sec.  562 ;  4  Scam.  440. 

(z)  18  Pick.  427;  24  id.  425;  4  Wend.  217;  3  id.  667;  7  Cow.  30;  6  Ired. 
3S;  25  Maine,  464;  19  Ark.  237;  2  Flor.  42 ;  i  Eng.  43;  2  Scam.  227;  i 
Gilm.  365;  12  111.  37S;  38  111.  320,  493;  2  Greenl.  Ev.,  sec.  562;  45  111.  437. 
See  49  111.  146;  5  Brachv.  102;  76  III.  479. 

{a)  4  Scam.  440,  445  ;  16  Mass.  155  ;  I  Gilm.  365 ;  12  111.  378 ;  2  Pike  315  ; 
3  Mon.  31  ;  5  Blackf.  431 ;  2  App.  34;  56  Barb.  652;  I  Chit.  PI.  (11  Am.  ed.) 
499;  I  Johns.  380;  3  Wend.  667;   i  Mass.  152;  21  111.  App.  Ct.  309. 

{h)  4  Scam.  440,  445  ;  4  Blackf.  304;   17  Ark.  85. 

3i 


530  REPLEVIN. 


Plea  of  71071  dcimuii,  etc. 


and  a  talcing  is  not  charged  in  all  of  them,  the  plea  is  to  be 
limited  accordingl}^  in  this  manner  : 

And  the  defendant,  etc.,  comes,  etc.,  and,  as  to  ih^Jirst 
count  of  the  said  declaration,  says  that  he  did  not  take  the 
goods  and  chattels  in  the  said  Jirst  count  mentioned,  or 
any,  etc.,  in  manner  and  form  as  the  plaintiff  has  above  in 
that  count  complained  against  him  :     And  of  this,  etc. 

JVo.  238.     Plea  of  NON  detinuit. 

{This  -plea  is  the  same  in  form  as  non  cepit,  only  sub- ■ 
stituting  the  words  wrongfully  detain  for  the  word  take. 
When  -pleaded  to  one  of  several  counts^  and  after  non 
cepit,  or  other  plea-,  to  another  county  this  plea  may  be  as 
follozvs :)  And  as  to  the  second  count  of  the  said  decla- 
ration, the  defendant  says  that  he  did  not  wrongfulh'  detain 
the  o-oods  and  chattels  in  the  said  second  count  mentioned, 
or  any  or  either  of  them,  or  any  part  thereof,  in  manner 
and  form  as  the  plaintiff  has  above  in  that  count  com- 
plained against  him  :  And  of  this  the  defendant  puts  him- 
self upon  the  country,  etc. 

The  declaration  in  replevin  charges  that  the  defendant 
detained  the  goods  "until,  etc.,"  that  is,  until  replevied. 
The  plea  should  therefore  be  that  he  did  not  detain  the 
goods,  {non  detinuit,  etc.,)  and  not  that  he  does  not  detain 
them  {non  detinet,  etc.)  The  action  of  replevin  in  the 
dctinet — now  obsolete — was  to  recover  the  value  of  the 
goods,  and  damages,  where  the  goods  were  still  detained 
by  the  defendant,  {c) 

In  the  present  action  in  the  detimiit,  the  plaintiff  can 
only  recover  damages  for  the  taking  of  the  goods,  and  for 
the  detention  till  the  time  of  the  replevy,  and  not  the  value 
of  the  goods  themselves,  {d) 

Where  the  declaration  is  for  the  wrongful  detention  of  the 
goods  of  the  pja.intiff,  the  plea  of  non  detinuit  is  said  to  be 
the  general  issue  ;  {e)  and  under  it  the  plaintiff  must  prove, 

(c)  I  Chit.  PI.  145.     See  2  Bouv.  Die.  417;  6  Hill,  613. 

(</)  I  Chit.  PI.  146;  I  yaund.  347  b,  n.  2. 

(e)  4  Scam.  440,  445 ;  4  Blackt'.  304;  6  Mich.  166. 


REPLEVIN.  531 


N6t  guilty  to  count  in  trover — Property  in  the  defendant,  etc. 

not  only  the  wrongful  detention,  but  also  his  right  to  the 
immediate  possession.  {/^  And  under  such  plea  he  must 
prove  a  demand  and  refusal,  or  what  would  amount  to  a 
conversion,  in  order  to  establish  an  unlawful  detention  by 
the  defendant.  ( g) 

This  plea  admits  the  right  of  property  to  be  in  the  plaint- 
iff, and  only  puts  in  issue  the  detention  by  the  defendant ;  {h) 
and  if  the  issues  are  found  for  the  defendant,  he  is  merely 
protected  from  damages  and  costs,  and  he  will  not  be  en- 
titled to  a  return  of  the  property.  (/) 

Where  the  action  is  against  two  defendants,  each  may 
interpose  the  plea  of  non  dctimiit  separately,  (y') 

When  trov^er  is  joined  with  replevin,  (as  permitted  by 
statute  in  Illinois,)  the  plea  of  "not  guilty"  to  the  count  in 
trover  may  be  as  follows  : 

No.  239.     Plea  of '■'■  not  guilty"  to  count  in  trover,  -when 
joined  with  replevin. 

And  as  to  the  third  count  of  the  said  declaration,  the 
defendant  says  that  he  is  not  guilty  of  the  supposed  griev- 
ances above  in  the  said  third  count  laid  to  his  charge,  or 
any  or  either  of  them,  in  manner  and  form  as  the  plaintiff 
has  above  in  that  count  complained  against  him  :  And  of 
this  the  defendant  puts  himself  upon  the  country,  etc. 

No.  240.     Plea  0/ j)roperty  in  the  defendant. 

{First  ■plea,  non  cepit  or  non  detinuit,  as  ante,  N^o.  237 
or  No.  238.)  And  for  a  further  plea  in  this  behalf,  the 
defendant  says  that  the  plaintiff  ought  not  to  have  his  afore- 
said action  against  him,  the  defendant,  because  he  savs,  (*) 
that  the  said  goods  and  chattels  in  the  said  declaration 
mentioned,  at  the  said  time  when,  etc.,  were  the  property 
of  him,  the  defendant,  and  not  of  the  plaintiff,  as  bv  the 
said  declaration  is  above  supposed :  And  this  the  defend- 
ant is  ready  to  verify  ;  wherefore  he  prays  judgment,  etc. 

(/)  4  Scam.  440.     See  15  111.  224;  2  Gilm.  342. 

(^)  13  111.  315;  2  Gilm.  342;  4  Greenl.  306;  3  Eng.  (Ark.)  510. 

(A)  15  111.  224;  23  111.  409.     See  I  Gilm.  365;   12  111.  378;  5  Bradw.  102. 

{i)  38  111.  320;  12  111.  378.     See  16  111.  146;  21  111.  App.  Ct.  309. 

(»  16  111.  146. 


532  REPLEVIN. 

Plea  of  property  in  defendant — Replication. 

The  conclusion  of  the  plea,  in  full,  is — "And  this  the 
defendant  is  ready  to  verify  ;  wherefore  he  prays  judgment 
if  the  plaintiff  ought  to  have  his  aforesaid  action  against 
him,  the  defendant ;  and  he  also  prays  a  return  of  the  said 
goods  and  chattels,  together  with  his  damages  and  costs 
in  this  behalf,  according  to  the  form  of  the  statute  {k)  in 
such  case  made  and  provided,  to  be  adjudged  to  him,  etc." 

If  the  plea  is  not  to  the  whole  declaration,  it  is  of  course 
to  be  limited  accordingly.  See  the  remarks,  ante,  page 
174. 

JVo.  241.     Re-plication  to  the  -plea  of  property  in  the  de- 
fendant. 

In  the Court. 

Term,  18 — . 

A.  B.  ^ 
vs.     >  Replevin. 

C.  D.  ^  And  the  plaintiff,  as  to  the  plea  of  the  defend- 
ant by  him  secondly  above  pleaded,  says  that  he,  the 
plaintiff,  by  reason  of  anything  in  that  plea  alleged,  ougiit 
not  to  be  barred  from  having  his  aforesaid  action,  because 
he  says,  that  the  said  goods  and  chattels  in  the  said  decla- 
ration mentioned,  at  the  said  time  when,  etc.,  (*)  were  the 
property  of  him,  the  plaintiff,  and  not  of  the  defendant,  as 
he  has  above  in  that  plea  alleged  :  And  this  the  plaintiff 
prays  may  be  inquired  of  by  the  country,  etc. 

It  is  held  that  under  the  plea  of  property  in  the  defend- 
ant, or  in  a  stranger,  in  an  action  of  replevin,  the  material 
inquiry  will  be  as  to  the  property  of  the  plaintiff  in  the 
goods,  which  he  must  be  prepared  to  prove,  the  omis  pro- 
handi  of  this  issue  being  on  him.  (/)  And  under  such  plea 
the  defendant  may  show  any  legal  title  to  the  property,  no 
matter  how  derived.  (?;z) 

{k)  Rev.  Stat.  (1877)  811. 

(/)  5  Harr.  10;  i  Sanf.  292;  i  Salk.  5;  3  Wen-!.  667;  12  Wend.  161,  30; 
13  Wend.  425;  5  Binn.  399;  6  Watts,  301 ;  6  Penn.  Law  Jour.  82;  x  N.  J. 
620 ;  2  Greenl.  Ev.,  Sec.  563.     But  see  4  Scam.  440 ;  7  Dana,  285 ;  69  111.  29. 

{m)  31  III.  230;  37  111.  281.     See  61  111.  126. 


REPLEVIN.  533 


Plea  of  property  in  a  stranger,  etc. — Replication. 

If  the  issue  on  such  plea  is  found  for  the  defendant,  he 
will  be  entitled  to  a  return  of  the  propert}'',  and  to  dam- 
ages, (n) 

JVo.  242.     Plea  offro^erty  in  a  stranger. 

{As  in  No.  240,  ante,  to  the  asterisk,  and  then  -proceed:) 
that  the  said  goods  and  chattels  in  the  said  declaration 
mentioned,  at  the  said  time  when,  etc.,  were  the  property 
of  one  E.  P.,  and  not  of  the  plaintiff,  as  by  the  said  decla- 
ration is  above  supposed  :  And  this  the  defendant  is  ready 
to  verify  ;  wherefore  he  prays  judgment,  etc. 

JVo.  243.      Replication  to  plea  of  property  in  a  stranger. 

[As  in  No.  241,  ante,  to  the  asterisk,  and  then  proceed:) 
were  the  property  of  the  plaintiff,  and  not  of  the  said  E.  F., 
as  the  defendant  has  above  in  that  plea  alleged  :  And  this 
the  plaintiff  prays  ma}'  be  inquired  of  by  the  country,  etc. 

If  the  defendant  succeeds  on  the  plea  of  property  in  a 
stranger,  on  the  trial,  he  is  entitled  to  a  return  of  the  prop- 
erty, and  to  damages  for  the  detention.  It  is  not  necessary 
that  he  should  by  proof  connect  himself  with  the  title  of 
the  stranger.  It  is  sufficient  that  the  right  of  property  is 
not  in  the  plaintiff,  (o)  In  New  York  it  was  however  held 
that  the  defendant  must  connect  himself  with  the  title  of  the 
stranger,  and  thus  establish  a  right  paramount  to  that  of 
the  plaintiff,  {p) 

Where  the  defendant  pleads  property  in  himself,  or  a  third 
preson,  he  must  in  the  same  plea  traverse  the  plaintiff's  alle- 
gation of  right.  It  is  held  that  in  such  case  the  allegation  ol 
property  in  the  defendant,  or  a  third  person,  is  only  to  be 
considered  as  inducement  to  the  traverse  of  the  plaintiff's 
right,  and  the  plaintiff  must  take  issue  on  the  traverse,  and 

(«)  45  111.  437;  38  111.  320;  I  Gilm.  365.  See  37  111.  281 ;  13  111.  496;  49 
111.146;  Rev.  Stat.  (1877)811;  72111.358,495;  69  III.  533. 

(0)  I  Gilm.  365  371;  I  Johns.  380;  i  Black  (U.S.)  96;  69  111.  299;  71 
111.  19;  5  Bradw.  396;    3  Bradw.  295;   II  111.  567. 

(/)  56  Barb.  (N.  Y.)  652.     See  21  111.  App.  Ct.  (E.  B.  Smith),  309. 


534  REPLEVIN. 


Plea  of  justification  by  a  sheriff,  etc. 


not  on  the  inducement ;  and  on  such  issue  the  substantial 
matter  in  dispute  is  the  right  of  the  plaintiff  to  the  property. 
The  plaintiff,  it  is  held,  has  the  affirmative  of  the  issue,  and 
must  sustain  his  right,  or  fail  in  the  action  ;  and  what  the 
plaintiff  must  prove,  the  defendant  is  at  liberty  to  disprove. 
This  he  may  do  by  showing  a  state  of  facts  inconsistent 
with  the  plaintiff's  claim  of  right.  (^) 

Where  a  defendant  pleads  propert}'  in  a  stranger,  and 
the  issue  on  the  plea  is  found  for  him,  such  finding  is  con- 
clusive between  the  plaintiff  and  the  defendant  in  another 
suit  for  the  same  property ;  and  a  title  acquired  from  the 
stranger,  after  such  finding,  precludes  the  party  pleading 
such  plea  from  showing  a  prior  title  in  himself,  (r)  But 
such  stranger  is  not  bound  by  the  verdict  in  such  case,  un- 
less he  is  in  some  way  directly  connected  in  interest  with 
the  party  pleading  the  plea.  (5) 

JVo.  244.     I-'/ca  of  justijication,  by  a  sheriff,  under  a  fi. 
fa.  against  a  third  person. 

{First  flea,  non  cepit,  No.  2^7,  or  non  detinuit.  No. 
238 — or  both  mav  be  pleaded.,  if  necessary  ;  next,  -property 
in  defendant,  No.  240;  next,  property  in  a  stranger, 
No.  242.)  And  for  a  further  plea  in  this  behalf,  the  de- 
fendant says  that  the  plaintiff  ought  not  to  have  his  afore- 
said action  against  him,  the  defendant,  because  he  saj^s,  (*) 
that  one  J.  K.,  before  the  said  time  when,  etc.,  to  wit,  on, 

etc.,  sued  out  of  the Court  of  the  county  aforesaid  a 

certain  writ  oi fieri  facias,  of  that  date,  against  one  L.  M., 
directed  to  the  sheriff  of  the  county  aforesaid,  by  which  said 
writ  the  People  of  the  said  state  of  Illinois  commanded  such 
sheriff  that  of  the  goods  and  chattels,  lands  and  tenements, 
in  his  county,  of  the  said  L.  M.,  he  should  cause  to  be 

made  the  sum  of dollars,  damages,  and  the  sum  ot 

dollars,  costs  of  suit,  which  by  the  consideration  of 

{q)  I  Gilm.  365,  371  ;  71  III.  326;  83  111.  463;  62  111.  412;  21  Wend.  205, 
and  the  numerous  cases  there  cited  ;  I  N.  J.  267  ;  3  Har.  339  ;  6  Blackf.  2O1. 
See  2  Greenl.  Ev.,  Sec.  563.     Liui  see  4  Scam.  440  ;  7  Dana,  2S5. 

(r)  I  Miss.  774. 

(5)  13  111.  496. 


REPLEVIN.  535 


Plea  of  justification  by  a  sheriff,  etc. 


the  said  court,  on,  etc.,  the  said  J.  K.  recovered  against 
the  said  L.  M,,  together  with  interest  thereon  at  the  rate  of 
six  per  centum  per  annum  from  the  time  of  recovering  the 
same  as  aforesaid,  and  also  the  further  sum  of ,  accru- 
ing costs  on  the  said  judgment,  and  that  such  sheriff  should 
have  the  said  moneys  ready  to  render  to  the  said  J.  K.  ac- 
cording to  law,  and  should  make  return  of  the  said  writ  in 
ninety  days  after  the  said  date  thereof;  which  said  writ  was 
thereupon,  on  the  said  day  of  the  date  thereof,  there  deliv- 
ered to  the  defendant,  who  then  and  from  thenceforth,  until 
and  at  and  ^fter  tlie  said  time  when,  etc.,  was  sheriff  of  the 
county  aforesaid,  to  be  executed  in  due  form  of  law ;  by 
virtue  of  which  said  writ  the  defendant,  as  such  sheriff  as 
aforesaid,  afterwards,  and  before  the  return-day  of  the  said 
writ,  to  wit,  on  the  same  day  in  the  said  declaration  men- 
tioned, being  the  said  time  when,  etc.,  (and  the  said  writ 
being  then  in  full  force  and  unsatisfied,)  there  took  the  said 
goods  and  chattels  in  the  said  declaration  mentioned,  and 
detained  the  same,  in  execution  of  the  said  writ;  which  are 
the  same  taking  and  detention  in  the  said  declaration  above 
supposed,  etc.  :  And  the  defendant  further  says,  that  the 
said  goods  and  chattels  in  the  said  declaration  mentioned, 
at  the  said  time  when,  etc.,  were  the  property  of  the  said 
L.  M.,  and  not  of  the  plaintiff,  as  by  the  said  declaration  is 
above  supposed,  and  were  subject  to  execution,  to  wit,  in 
the  county  aforesaid.  And  this  the  defendant  is  read}'"  to 
verify  ;  wherefore  he  prays  judgment,  etc. 

The  plaintiff'  may  reply  as  in  No.  243,  ante^  reasserting 
his  own  right,  and  denying  that  of  the  defendant.  See  the 
remarks  under  the  two  forms  of  pleas  next  preceding  the  last. 

The  above  form  may  be  readily  adapted  to  a  justification 
under  a  writ  of  attachment,  by  setting  out  such  writ  instead 
of  the  execution  ;  and  it  may  also  be  varied  to  suit  a  justi- 
fication by  a  constable,  or  other  oflicer.  See  pleas  of  justi- 
fication, etc.,  in  trespass,  _^^5/. 

The  plea  must  aver  the  property  to  be  in  the  defendant 
in  the  execution;  {f)  and  traverse  the  plaintifi''s  right ;  {ji 

(/)  6  Blackf.  261.     Sod  76  m.  479  ;  83  111.  463. 

(«)  3  Wend.  667;  13  Wend.  30;  21  Wend.  205.  See  2  Greenl.  Ev.,  sec. 
563;  I  Gilm.  365,  371. 


536  REPLEVIN. 


Plea  of  lien  on  property,  etc. 


and  allege  that  the  defendant  took  the  property  by  virtue 
of  the  execution,  and  that  it  was  subject  thereto,  {v)  And 
the  general  rule  is,  that  where  an  officer  himself  attempts 
to  justify  his  acts  done  by  virtue  of  his  office,  he  must  al- 
lege and  prove  himself  an  officer  de  jure,  {w) 

An  officer,  when  sued  in  trespass  or  replevin  for  taking 
property  on  execution,  can  justif}''  under  the  writ,  without 
setting  out  the  judgment  upon  which  such  writ  is  based ; 
but  if  sued  by  a  stranger,  who  claims  the  property  by  vir- 
tue of  a  sale  anterior  to  the  levy,  it  seems  that  it  would  be 
necessary  to  produce  the  judgment  in  evidence,  in  order  to 
defeat  the  sale  for  fraud ;  but  it  would  not  be  necessary  to 
plead  it.  {x)  The  production  of  the  writ  under  which  the 
officer  acts  is  for  him  a  sufficient  justification.  The  rule 
is  that  a  mere  ministerial  officer,  who  executes  the  process 
of  a  court  having  jurisdiction  of  the  subject-matter,  and 
having  also  jurisdiction  to  issue  such  process,  in  general, 
or  in  certain  specified  cases,  is  protected  in  the  execution 
of  such  process,  if  it  is  regular  on  its  face,  and  apparently 
W'ithin  the  jurisdiction  of  the  court  issuing  the  same,  (jy) 

JVo.  245.     Pica  of  lien  on  -property,  etc. 

i^As  in  the  last  -precedent^  to  the  asterisk^  and  then  -pro- 
ceed:^ that  before  the  said  time,  when,  etc.,  to  wit,  on, 
etc.,  in,  etc.,  the  plaintiff,  being  possessed  of  the  said  car- 
riage in  the  said  declaration  mentioned,  as  of  his  own  prop- 
erty, delivered  the  same  to  the  defendant,  he  then  and  still 
being  a  carriage-maker ,  for  the  purpose  of  having  the  de- 
fendant put  the  said  carriage  in  good  order  and  repair  for 
the  plaintiff,  for  reward  ;  and  thereupon  the  defendant,  at 
the  request  of  the  plaintiff,  before  the  said  time  when,  etc., 
to  wit,  on,  etc.,  did  there  put  the  said  carriage  in  good  or- 
der and  repair  for  the  plaintiff;  and  thereby  the  plaintiff 
then  and  there  became  and  was  indebted  to  the  detendant 

{v)  44  J.  J.  Marsh.  254;  4  Bradw.  275,  575,  566;  7  Bradw.  612;  24  111. 
40;   29  111.  525. 

(w)   21  111.  632,  635  ;  3  Scam.  483  ;  3  Wis.  404. 

{x)  4  Scam.  411 ;   12  Johns.  395  ;   2  Mon.  250.     See  2  Pick.  413. 

(;')  4  Scam.  411;   16  Wend.  517;  2  Mon.  250. 


REPLEVIN,  537 


Plea  of  lien,  etc. 


in  the  sum  of dollars,  for  the  work  by  the  defendant 

done,  and  materials  by  him  furnished,  in  and  about  the 
putting  of  the  said  ca7'riage  in  good  order  and  repair  for 
the  plaintiff'  as  aforesaid  :  And  the  said  sum  of  money  re- 
maining unpaid,  the  defendant,  at  the  said  time  when,  etc., 
was  entitled  to  detain  the  said  carriage  as  and  for  a  security 
for  the  payment  of  the  said  sum  of  mone}^  so  due  from  the 
plaintiff'  to  the  defendant  as  aforesaid ;  wherefore  the  de- 
fendant did  then  and  there  detain  the  said  carriage^  as  he 
lawfully  might  for  the  cause  aforesaid ;  which  is  the  same 
detention  in  the  said  declaration  above  supposed.  And  this 
the  defendant  is  ready  to  verify  ;  whereupon  he  prays  judg- 
ment, etc. 

By  a  little  alteration,  the  above  form  may  be  adapted  to 
other  cases  of  lien,  as  those  of  warehousemen,  innkeepers, 
attorneys,  etc. 

By  implication  of  law,  every  workman  has  a  lien  for 
work  done  in  respect  of  chattels,  for  the  price  of  such  work 
and  necessary  materials,  if  due  and  unpaid  ;  {z)  but  a  lien 
may  be  lost  by  parting  with  the  possession  of  the  propertv, 
or  claiming  to  hold  it  upon  another  and  inconsistent 
ground,  ia) 

An  innkeeper,  {U)  consignee  of  merchandise,  banker,  (c) 
attorneys,  {d)  and  warehousemen,  [e)  etc.,  may  retain  the 
property  in  respect  to  which  the  lien  attaches,  until  their 
charges  are  paid.  But  a  manufacturer  who  makes  a  con- 
tract to  deliver  the  things  to  be  manufactured, without  re- 
quiring prepayment,  relinquishes  his  lien  thereon.  {J^) 

(z)  5  M.  &  S.  i8o;  5  Bing.  130;  2  M.  &  P.  201  ;  28  Barb.  157. 

(a)  I  East,  4;  I  Stark.  408;  9  Moor,  41;  2  Bing.  23;  i  Camp.  410;  4 
Blackf.  396;  3  Steph.  N.  P.  2694;  7  Ind.  21 ;  ilnd.276;  5  Blackf.  179.  See 
34  111.  508;  4  Scam.  495. 

{b)  5  Dana,  310;  23  Penn.  St.  193. 

(c)  3  Gilm.  233. 

(f/)  Tidd's  Pr.  337;  Chit.  Arch.  36;  3  Term,  275;  4  Term,  123. 

(«?)  24  111.  99. 

(/)  24  111.  483. 


53S  REPLEVIN. 


Plea  tliat  property  was  held  as  a  pledge — Avowry  or  cognizance  for  rent. 


JVo.  246.     Pica  that  the  -property  zuas  held  by  defendant 
as  a  pledge,  {g-) 

{As  in  No.  244,  ante,  to  the  asterisk,  and  then  proceed:^ 
that  the  plaintiff,  before  the  said  time  when,  etc.,  to  wit, 
on,  etc.,  in,  etc.,  delivered  to  the  defendant  the  said  goods 
and  chattels  in  the  said  declaration  mentioned,  as  a  pledge, 
to  be  by  him  kept  until  the  plaintiff  should  pay  to  the  de- 
fendant the  sum  of dollars,  which  the  plaintiff  then 

owed  to  him,  the  defendant:  And  the  said  sum  of  money 
remaining  unpaid,  the  defendant,  at  the  said  time  when, 
etc.,  there  detained  the  said  goods  and  chattels,  as  such 
pledge  as  aforesaid,  as  he  lawfully  might  do,  for  the  cause 
aforesaid ;  which  is  the  same  detention  in  the  said  declara- 
tion above  supposed.  And  this  the  defendant  is  ready  to 
verify ;  wherefore  he  prays  judgment,  etc. 

Where  goods  or  choses  in  action  have  been  pledged  to 
secure  the  payment  of  a  debt,  the  owner,  before  he  can 
have  the  right  to  resume  possession  thereof,  must  pay  the 
debt,  or  at  least  make  a  sufficient  tender.  {Ji) 

No.  247.     Avowry  or  cognizance  for  rent. 

{First  pica.,  non  cepit.  No.  237,  ante ;  seco7id  plea, 
property  in  the  defendant.  No.  239,  ante;  etc.)  And 
the  defendant  well  avows  {or,  in  a  cognizance,  "  as  bailiff 
of  E.  F.  well  acknowledges")  the  taking  of  said  goods 
and  chattels  in  the  said  declaration  mentioned,  in  the 
said  dwelling-house  in  which,  etc.,  and  justly,  etc.,  be- 
cause he  says,  that  the  plaintiff,  {or  one   "  G.  H.,")  for  a 

long  time,  to  wit,  for  the  space  of ,  next  before  and 

ending  on,  etc.,  and  from  thence  until  and  at  the  said  time 
when,  etc.,  held  and  enjoyed  the  said  dwelling-house  in 
which,  etc.,  with  the  appurtenances,  as  tenant  thereof  to 
the  defendant,  {or  "the  said  E.  F.,")  by  virtue  of  a  certain 
demise  thereof  to  him,  the  plaintiff,  ((?r  "the  said  G.  H.*') 

therefor  made,  at  and  under  a  certain  yearly  rent  of 

dollars,  pa3^able,  etc.,  in  every  year,  by  even  and  equal 

{ff)  See  4  Scam.  440;  16  Mass.  155;  Com.  Dig.  Replev.  A. 
ih)  34  111.  50S. 


REPLEVIN.  539 


Plea  in  bar  to  avowry,  etc. 


portions ;  and  because  the  sum  of dollars  of  the  rent 

aforesaid,  for  the  space  of ,  ending  as  aforesaid,  on, 

etc.,  and  from  thence  until  and  at  the  said  time  when,  etc., 
was  due  and  in  arrear  from  the  plaintiff  to  the  defendant 
{or  "the  said  E.  F.,"  in  a  cognizance,)  he,  the  detendant, 
well  avows  {or,  in  a  cognizance,  "as  bailiff  of  the  said 
E.  F.  well  acknowledges")  the  taking  of  the  said  goods  and 
chattels,  in  the  said  dwelling-house  in  which,  etc.,  and 
justly,  etc.,  as  for  and  in  the  name  of  a  distress  for  the 
said  rent  so  due  and  in  arrear  to  the  defendant  {or  "the 
said  E.  F.")  as  aforesaid,  and  which  still  remains  in  arrear 
and  unpaid.  And  this  the  defendant  is  ready  to  verify ; 
wherefore  he  prays  judgment,  etc.  (/) 

No.  248.     Plea  in  bar  to  an  avowry  or  cognizance  for 
rent — Traverse  of  the  demise. 

{Similiter  to  non  cepit,  as  ante.  No.  69.)  And  the 
plaintiff,  as  to  the  said  avowry  {or  "cognizance")  of  the 
defendant,  says  that  the  defendant,  by  reason  of  anything 
by  him  in  his  said  avowry  {or  "cognizance")  alleged, 
ought  not  to  avow  {or  "as  bailiff  to  the  said  E.  F.  to  ac- 
knowledge") the  taking  of  the  said  goods  and  chattels,  in 
the  said  place  in  which,  etc.,  and  justly,  etc.,  because  he 
says,  (*)  that  he,  the  plaintiff,  {or  "the  said  G.  H.")  did 
not  hold  or  enjoy  the  said  dwelling-house  in  which,  etc., 
with  the  appurtenances,  as  tenant  thereof  to  the  defendant, 
{or  "the  said  E.  F.,")  under  the  said  supposed  demise 
thereof  in  the  said  avowry  {or  "  cognizance")  mentioned,  in 
manner  and  form  as  the  defendant  has  above  in  his  said 
avowry  {or  "cognizance")  in  that  behalf  alleged:  And 
this  the  plaintiff  prays  may  be  inquired  of  by  the  country, 
etc.  {j) 

Under  the  issue  non  demisit,  or  "no  rent  in  arrear,"  in 
replevin,  the  plaintiff  may  show  that  at  the  time  he  exe- 
cuted the  lease  he  was  owner  of  the  land  himself,  but  was 
induced  to  sign  the  lease  by  fraud  and  misrepresentation 
of  the  defendant,  {k) 

{i)  Morris  on  Replevin,  239.     See  73  111.  450;  67  111.  244. 
(y  )  Morris  on  Replevin,  240. 
{k)  S  Watts,  390. 


S40 


REPLEVIN. 


Plea  to  an  avowry,  no  rent  in  arrear — Reference  to  forms. 

No.  249.     Plea  in  bar — to  an  avowry  or  cognizance  for 
rent — '"'■no  rent  in  arrear" 

[As  in  the  last  precedent,  to  the  asterisk,  and  then  pro- 
ceed:) that  no  part  of  the  said  rent  in  the  said  avowry  {or 
"cognizance")  mentioned,  at  the  said  time  when,  etc.,  was 
in  arrear  from  the  plaintiff'  to  the  defendant,  [or  "the  said 
E.  F.,")  in  manner  and  form  as  the  defendant  has  in  his 
said  avowry  {or  "cognizance")  in  that  behalf  alleged: 
And  this  the  plaintiff  prays  may  be  inquired  of  by  the 
country,  etc.  (/) 

The  plea  of  "no  rent  in  arrear"  admits  the  demise,  as 
well  as  the  title  of  the  defendant  as  laid  in  the  avowry  or 
cognizance,  {ni) 

In  replevin  the  issue  is  upon  the  right  of  possession  at  the 
commencement  of  the  suit.  And  although,  under  the  statute, 
the  court  will  not  deprive  the  plaintiff  of  actual  possession, 
where  he  has,  since  the  commencement  of  the  suit,  acquired 
a  right  to  it,  there  is  no  rule  by  which  he  may  have  judgment 
for  a  return,  upon  the  strength  of  an  after  acquired  lien.  («) 

For  other  pleas,  and  for  demurrers,  see  the  forms  in 
assumpsit,  ante. 

(I)  Morris  on  Replevin,  241. 

{in)  4  Cranch,  299;  5  Serg.  &  Rawle,  255;   10  Serg,  &  Rawle,  255. 
{n)   21  111.  App.  Ct.  (E.  B.  Smith),  309.     See  89  111.  229;  78  111.  62;  91  111. 
497;  77  111.  206. 


TRESPASS.  541 


Nature  of  the  action,  etc. 


CHAPTER   XI. 


TRESPASS. 


Trespass,  in  its  most  extensive  sense,  means  any  trans- 
gression or  offense  against  another's  person  or  property  ; 
and  therefore  all  actions  for  such  transgressions  or  offenses, 
though  variously  named,  are,  in  fact,  actions  of  trespass  ; 
but  technically  trespass  signifies  a  wrong  committed  with 
violence. 

At  common  law,  where  the  act  is  wilful,  and  the  injury 
immediate,  trespass  is  the  only  remedy.  But  where  the 
act  is  not  wilful,  but  the  result  of  negligence,  either  tres- 
■pass  or  case  will  lie,  at  the  option  of  the  plaintiff,  even 
though  the  injury  may  be  immediate,  {a) 

A  familiar  example  of  trespass  may  be  found  in  an  as- 
sault and  battery,  or  a  carrying  away  of  goods,  or  a  forci- 
ble entry  into  a  house,  or  upon  lands,  breaking  open  a 
door,  or  tearing  down  a  fence.  Such  an  act  would  be,  in 
law,  a  trespass  vi  ct  ai-ims,  or,  in  the  English  phrase  now 
used  in  pleadings,  a  trespass  with  force  and  arms.  Early 
in  the  history  of  the  law,  a  ver}'  slight  degree  of  violence 
was  sulKcient  to  constitute  this  offense  ;  and  soon  afterwards 
the  courts  held  that  it  might  be  committed  in  some  cases 
without  any  actual  force  whatever,  implying  by  construc- 
tion the  force  necessary  to  make  it  a  trespass  vi  ct  aj-mis, 
if  the  act  was  unlawful.  Thus,  for  example,  a  peaceable 
entry  into  a  house  or  land,  with  intent  to  take  possession 
and  oust  the  true  owner,  was  regarded  as  a  trespass  vi  ct 
armis.     And  as  there  grew  up  a  large  and  very  important 

(a)  4  B.  &  C.  223 ;  3  Stephen's  N.  P.  2629. 


542  TRESPASS. 

Nature  of  the  action,  etc. 

class  of  trespasses,  in  which  there  was  neither  actual  nor 
constructive  force,  and  to  which  the  law  of  trespass  with 
force  and  arms  could  not  be  made  applicable  by  any  con- 
struction, writs  were  devised  whereby  remedies  might  be 
given  for  such  wrongs.  These  writs  were  called,  in  law 
Latin,  hrcvia  dc  h'ansgressione  stiver  casum,  and  the  form 
of  action  which  grew  out  of  the  use  of  these  writs  is  now 
called  trespass  on  the  case. 

It  is  often  a  matter  of  importance,  as  well  as  of  great 
diflicult}',  to  determine  whether  the  action,  by  which  re- 
dress is  sought  for  certain  injuries,  should  be  trespass^  or 
trespass  on  the  case;  for  if  the  plaintiff  mistakes  his  form 
of  action,  he  will  meet  with  a  nonsuit,  and  be  subjected 
to  costs.  In  some  of  the  states  of  the  Union,  however, 
among  others  Illinois,  the  distinction  between  these  actions 
has  been  abolished  by  statute,  while  in  others  the  rigor  of 
the  distinction  has  been  taken  away  or  modified. 

Trespass  lies  when  the  injury  complained  of  is  itself  the 
wrong  done  by  the  defendant ;  while  trespass  on  the  case 
lies  when  the  injury  was  consequential  upon  the  wrong 
done,  and  flowed  from  it  indirectly.  For  example,  tres- 
pass on  the  case  lies  for  an  injury  sustained  by  the  plaintiff 
from  the  defendant's  sale  to  him  of  unwholesome  meat,  or 
wine,  especially  where  it  was  the  business  of  the  defendant 
to  vend  these  things.  So,  for  an  injury  caused  b}^  the  want 
of  skill  of  any  person  in  the  exercise  of  his  profession,  as 
a  ph3^sician  or  attorney.  There  are  many  very  nice  and 
subtle  distinctions  in  the  law  of  trespass.  It  is  certain  that 
a  man  may  begin  by  doing  a  right  thing  in  a  right  way, 
and  then  so  change  his  course  as  to  do  a  wrong  thing,  or 
a  right  thing  in  a  wrong  wa}^.  In  many  of  these  cases, 
such  person  thus  subsequently  trespassing  is  regarded  by 
the  law  as  a  trespasser  ab  initio,  or  as  having  been  a  tres- 
passer through  the  whole  of  his  conduct.  Thus,  if  in  the 
execution  of  legal  process,  an  officer  does  something  which 
is  distinctly  illegal,  the  law  considers  that  he  began  to  act 


TRESPASS.  543 


Injuries  to  the  person — Where  the  action  '.ies,  etc. 

with  intent  to  do  an  illegal  thing,  and  that  all  of  his  con- 
duct was  tainted  by  this  intention,  and  was  therefore  illegal. 
Many  cases  have  turned,  and  much  argument  has  been  ex- 
pended, upon  this  distinction.  It  is  very  doubtful  whether 
an}"  man  can  be  made  a  trespasser  ab  initio  by  a  subse- 
quent wrongful  act,  unless  he  did  the  wrong  while  in  the 
exercise  of  a  strictly  legal  right,  which  the  injured  party 
had  no  right  to  resist.  The  rule  seems  to  be  confined,  by 
the  best  authorities,  to  the  cases  of  an  officer  of  the  law 
acting  under  a  legal  warrant,  and  a  guest  of  an  inn.  It  is 
extended  to  the  latter,  because  a  licensed  innkeeper,  being 
bound  b}'  law  to  receive  a  guest,  is  then  protected  by  the 
rule  that  if  the  guest,  thus  exercising  his  positive  right  of 
entry  peaceably  and  without  offense,  while  in  the  house 
does  a  wrong  to  the  innkeeper,  the  offender  shall  be  held 
to  have  entered  the  house  for  that  purpose,  and  therefore  to 
be  a  trespasser  from  his  entrance. 

The  Illinois  practice-act,  in  force  July  i,  1872,  abolishes 
the  distinction  between  the  actions  of  trespass  and  trespass 
on  the  case  ;  and  provides  that  in  all  cases  where  trespass 
or  trespass  on  the  case  was  theretofore  the  appropriate  Ibrm 
of  action,  either  of  those  forms  may  be  used,  at  the  option 
of  the  plaintiff,  {b) 

The  subject  of  trespass  will  be  further  considered  under 
the  following  heads  : 

I.     Injuries  to  the  person. 
II.     Injuries  to  personal  property. 

III.     Injuries  to  real  property. 


I.     injuries  to  the  person. 

Trespass  is  the  proper  remedy  for  an  assault  .md  battery, 
wounding,  imprisonment,  and  the  like  ;  and  it  also  lies  for 
an  injury  to  the  relative  rights,  when  occasioned  by  force, 
as  for  beating,  wounding  or  imprisoning  a  wife  or  servant, 

(i)  ^n/^  page  415;  Rev.  Stat.  (1877)  737.  See  17  Bradw.  417;  76  111.  224; 
77  111.  603;  80  111.  205. 


544  TRESPASS. 


Injuries  to  the  person — Where  the  action  lies,  etc. 


by  which  the  plaintiff  has  sustained  a  loss,  (c)  though  the 
damage,  the  loss  of  service,  etc.,  were  consequential. 

It  is  the  only  remedy  for  a  menace  to  the  plaintiff,  at- 
tended with  consequent  damage,  (d)  and  for  an  illegal 
assault,  battery,  wounding,  or  imprisonment,  when  not 
under  color  of  process,  {e)  It  lies  for  an  assault  with  an 
attempt  to  commit  a  battery  ;  (y)  and  also  when  the  bat- 
tery, imprisonment,  etc.,  were  in  the  first  instance  lawful, 
but  the  party, by  an  unnecessary  degree  of  violence.became 
a  trespasser  ad  initio,  {g) 

In  the  case  of  an  assault  and  batter}-,  both  parties  may  be 
guilty  of  a  breach  of  the  peace,  and  may  be  indicted ;  but 
a  civil  action  can  not  be  brought  by  each  against  the  other. 
And  although  the  defendant  may  have  been  the  aggressor, 
3'et  if  the  plaintiff  not  only  used  more  force  than  was  neces- 
sary for  self-defense,  but  unnecessarily  abused  the  defend- 
ant, he  can  not  recover  damages,  but  must  pay  damages,  {h) 

Trespass  lies  for  criminal  conversation ;  (/)  and  the  right 
to  sue  is  not  defeated  by  the  death  of  the  wife  before  the 
action  is  brought,  {j)  It  may  be  maintained  by  a  father 
for  a  forcible  injury  to  his  son  ;  (^)  and  it  lies  for  seducing 
away  a  wife,  (/)  or  servant,  {in)  or  for  debauching  the  lat- 
ter, (w)  force  being  implied,  and  the  wife  and  servant  being 
considered  as  having  no  power  to  consent ;  and  a  count  for 
beating  the  plaintiff's  servant,  ^€7'  quod  servitium  amisit, 

(c)  9  Co.  113;  10  Co.  130;  I  Chit.  PI.  (11  Am.  ed.)  167. 
{d)  3  Black.  Com.  120;  i  Chit.  PI.  (11  Am.  ed.)  167. 
(«)  n  Mod.  180,  181 ;  36  Barb.  (N.  Y.)  495;  i  Chit.  PI.  (11  Am.  ed.)  167. 
I/)  3  Penn.  176. 

{ff)  I  Chit.  PI.  (II  Am.  ed.)  167;  3  Day,  485;  2  Wend.  497;  i  Day,  351; 
15  Mass.  347,  465 ;  25  Wend.  371 ;  7  Dana,  453 ;  62  111.  354. 
{h)  2  Wend.  497.     But  see  35  N.  H.  503. 

(i)  7  Mod.  81  ;  2  Salk,  552;  6  East,  387;  41  111.  9;  62  111.  47. 
(/)  41  111.  9. 

{k)  5  Harring.  (Del.)  171. 
(/)  6  East,  387;  41  111.  9.     See  62  111.  47. 
{vi)  5  Term,  361  ;  7  Mod.  81  ;  2  Salk,  552. 
\n)   Bac.  Abr.  Trespass,  C.  l;  3  Wils.  562;  71  111.  400. 


TRESPASS.  545 

Injuries  to  the  person — Where  the  action  lies,  etc. 

may  be  joined  with  other  counts  in  trespass  ;  [o)  and  though 
it  has  been  usual  to  declare  in  case  for  debauching  a  daugh- 
ter, it  is  now  considered  to  be  preferable  to  declare  in 
trespass.  (^) 

Trespass  will  lie  against  a  plaintiff  suing  out,  or  a  magis- 
trate issuing,  void  process,  although  not  maliciously,  [q) 
If  a  justice  of  the  peace  officiously,  and  without  any  com- 
plaint on  oath,  or  personal  knowledge,  issues  his  warrant 
to  apprehend  a  person,  (r)  or  issues  process  in  a  cause 
where  he  has  not  jurisdiction,  his  proceedings  are  void, 
and  he  becomes  a  trespasser,  (s) 

Where  a  cap/as  has  been  issued  by  a  justice  of  the  peace, 
without  a  sufficient  oatii,  the  person  who  has  sued  out  the 
writ  is  not  answerable  in  trespass  vi  et  arniis,  the  magis- 
trate being  the  proper  person  to  pass  upon  the  sufficiency 
of  the  oath  ;  nor  would  the  magistrate  be  liable  in  trespass, 
if  he  had  jurisdiction  to  issue  the  process.  {£) 

Direct  and  immediate  force,  employed  by  one  person 
against  another  without  permission,  with  malice,  constitutes 
a  trespass,  however  slight  the  injury  produced  ;  but  it  is 
otherwise  if  force  is  used  with  permission.  [tC) 

A  person  who  directs  or  invites  the  commission  of  a 
trespass  is  guilty  as  a  principal,  and,  when  sued  for  the 
act,  can  not  be  permitted  to  show  that  the  trespass  would 
have  been  committed  without  his  interference,  {v) 

Where  the  defendant  drove  his  carriage  against  the  car- 
riage of  the  plaintiff,  on  the  public  highway,  by  means 
whereof  the  plaintiff  was  thrown  out  and  injured,   it  was 

(<?)  2  M.  &  Sel.  436;  I  Chit.  PI.  (11  Am.  ed.)  167. 

(/)  2  Caine,  292;   2  Aiken,  359;   2  M.  &  Sel.  436;  i   Chit.  PI.  (11  Am. 
0(1.;  i6S. 
\q)  II  Mass.  500,  507;  8  Mass.  79. 
(r)  Breese,  213. 

{s)  I  Sc.-im   332.     See  Breese,  43,  n.  ;  80  111.  5S0;   14  Bradw.   334. 
(/)  27  III.  467;  86  III.  152;   17  Bradw.  417. 
('*)  28  111.  438;   120  111.  83;   16  Briidw.  42. 
(:-)  2  Comst.  517;  5  Ohio,  250. 

35 


546  TRESPASS. 


Injuries  to  the  person — Where  the  action  lies,  etc. 

held  that  the  action  for  the  injury  to  the  plaintiff's  person 
should  be  in  trespass,  (zf) 

An  action  of  trespass  will  lie,  in  Illinois,  against  a  steam- 
boat, for  an  assault  and  battery  committed  by  the  mate  or 
other  officer  of  the  boat  on  the  person  of  a  passenger, 
while  such  boat  is  navigating  the  rivers  within  or  bordering 
upon  the  state,  (x) 

Where  a  sheriff,  in  order  to  arrest  a  debtor  on  execution, 
breaks  open  the  outer  door  of  his  dwelling-house,  the  sher- 
iff and  those  who  aided  in  so  doing  are  trespassers,  though 
they  act  by  command  of  the  sheriff,  (y)  Persons  sum- 
moned by  an  officer  to  assist  in  the  execution  of  a  legal 
process,  are  justifiable  in  their  acts  to  the  same  extent  that 
the  officer  would  be.   (z) 

A  private  individual  can  not  arrest  a  person  on  a  mere 
suspicion  that  he  has  been  guilty  of  a  crime  ;  (a)  but  if  a 
crime  has  actually  been  committed,  and  the  person  accused 
is  guilty,  and  there  is  danger  of  his  escape,  a  private  indi- 
vidual will  be  justified  in  making  or  causing  the  arrest  of 
such  accused  person,  (d) 

Where  there  is  well  grounded  suspicion  that  a  person 
has  committed  a  crime,  and  there  is  danger  of  an  escape, 
an  officer  may,  in  his  own  bailiwick,  arrest  the  suspected 
person,  without  a  warrant,  (c) 

If  a  person  enters  the  premises  of  another,  and  is  requested 
to  depart,  but  refuses  so  to  do,  the  latter  may  eject  the  in- 
truder, without  incurring  a  liability  as  a  trespasser,  provided 
he  uses  no  more  force  than  is  necessary  for  that  purpose,  {d) 

(w)  4  Barb.  596.     See  i  Chit.  PI.  (11  Am.  ed.)  1:8;  6  Car.  &  P.  23. 

(«)  22  III.  412;  Gross'  Stat.  723. 

(y)  19  Vermont,  151 ;  4  Hurl.  &  Nor.  8^9.  See  i  Chit.  PI.  (11  Am.  ed.) 
185. 

(z)  10  S.  &  M.  507.     See  10  Wend.  128;  12  Mass.  506,  511. 

(a)  51  111.  401  ;  43  111.  95. 

(ZJ)  Id.     But  see  3  Chit.  PI.  1081  ;  2  Swan's  Pr.  780. 

(c)  Id.;  I  Chit.  Crim.  Lav/,  21,  23.  See  4  Bla.  Com.  289;  i  Hale's  P. 
C.  587. 

(^)  45  111  367;  39  III- 83. 


TRESPASS.  547 

Injuries  to  the  person — "Where  the  action  lies,  etc. 

Where  a  railroad  conductor  forcibly  expels  a  passenger 
from  a  train,  between  the  usual  stopping  places  on  the  road, 
because  the  passenger  refuses  to  pay  his  fare,  the  railroad 
company  will  be  liable  in  trespass,  [c] 

Actions  for  injuries  to  the  absolute  rights  of  persons,  as 
for  assaults,  batteries,  wounding,  injuries  to  the  health, 
liberty  and  reputation,  can  only  be  brought  in  the  name  of 
the  person  immediately  injured,  and  if  he  dies,  the  remedy 
determines ;  or  if  the  person  who  committed  the  injury 
dies,  the  suit  likewise  abates.  (_/")* 

At  common  law,  for  injuries  to  the  person  or  property  of 
the  wife,  committed  before  marriage,  where  the  cause  of 
action  would  survive  to  the  wife,  or  for  injuries  to  the  -per- 
son of  the  wife  during  coverture,  by  battery,  slander,  etc., 
the  husband  and  wife  must  join  in  the  action ;  and  if  she 
dies  before  judgment  therein,  it  will  abate,  {g)  But  if 
after  judgment  the  wife  dies,  the  judgment  survives  to  the 
husband.  (//)  Actions  for  torts  committed  by  a  woman 
before  her  marriage,  or  for  torts  committed  by  the  wife 
^wr/w^' coverture,  as  for  an  assault,  slander,  etc.,  must  be 
brought  against  the  husband  and  wife  jointly.  In  trespass 
against  husband  and  wife  for  her  tort  before  coverture,  or 
a  wrong  committed  by  her  alone  during  the  coverture,  if 
she  dies  before  judgment,  the  suit  will  abate  :  but  if  the 
husband  dies,  or  becomes  bankrupt,  her  liability  will  con- 
tinue. (/) 

In  Illinois,  by  virtue  of  the  statute  of  1861,  a  married 
woman  may  sue  alone  for  personal  injuries,  (y) 

(0  48  111.  253. 

(/)  I  Chit.  PI.  (11  Am.  ed.)  60,  68.     See  18  III.  403;  also,  41  111.  9. 

{g)  I  Chit.  PI.  (II  Am.  ed.)  67,  73. 

(//)  12  Serg.  &  Rawle,  76. 

(/■)  I  Chit.  PI.  (II  Am.  ed.)  92,  93. 

(/)  52  111.  260;  Rev.  Stat.  (1877)  552;  77  111.  346;  75  111.  566. 

*But  see  111.  Stat.  Wills,  Sec.  123. 


548  TRESPASS. 


Injuries  to  personal  property — Where  the  action  lies,  etc 
II.       INJURIES  TO  PERSONAL  PROPERTY. 

The  action  of  trespass  lies  either  for  an  unlawful  taking 
of  a  personal  chattel,  or  for  an  injury  to  such  chattel  while 
in  the  possession  of  the  general  owner,  or  of  a  person  hav- 
ing a  special  property  in  it,  as  a  bailee,  {k)  For  most 
unlawful  takings,  this  action  is  a  concurrent  remedy  with 
trover ;  (J)  and  it  is  held  that  trespass  for  taking  goods 
may  be  sustained  by  proof  that  the  defendant  unlawfully 
exercised  authority  over  them,  against  the  will  and  to  the 
exclusion  of  the  owner,  (w)  although  there  was  no  manual 
taking  or  removal  of  the  goods,  [n) 

Trespass  lies  against  an  officer  who  takes  the  goods  of 
the  owner  under  an  execution  or  attachment  acrainst  a  third 
person  ;  {o)  and  where  he  seizes  property  exempt  from  ex- 
ecution or  attachment,  {p) 

The  taking  of  goods  by  an  officer,  as  such,  but  wjthoul 
authority  of  law,  is  a  trespass,  {q)  And  where  an  Gfficer, 
under  process  of  law,  sells  personal  property  before  or 
after  the  time  prescribed  bylaw;  (r)  or  sells  the  entire 
property  in  goods  owned  by  two  jointly,  under  an  execu- 
tion against  one  of  them ;  (5)  or  in  any  other  manner 
abuses  his  legal  authority  ;  he  becomes  a  trespasser  ab 
initio,  (t)     And  an  officer  is  liable  in  trespass  if  he  seizes 

{k)  I  Chit.  PI.  C"  Am.  ed.)  168,  171;  i  Saund.  84,  n.  2,  4;  Hob.  2S3;  3 
Halst.  226;  2  Hill.  Torts,  73;  10  Mass.  130.     See  55  111.  169. 

{I)  I  Chit.  PI.  (II  Am.  ed.)  171 ;  3  Wils.  336. 

(;«)  6  Wis.  319. 

(;/)  I  Met.  27. 

{o)  27  111.  134;  12  Cal.  275;  34  Penn.  48;  10  Md  14;  37  111.  341 ;  i  Chit. 
PI.  (II  Am.  ed.)  185. 

ip)  I  Pick.  232;  13  Mass.  394;  4  Zabr.  (N.  J.)  351 ;  4  Cush.  85,  386;  34 
Penn.  201;  28  Id.  238;  27  Geo.  299. 

iq)  6  Barb.  79;  4  E.  D.  Smith,  (N.  Y.)  418. 

{r)  21  Pick.  5r  ;  14  Pick.  356;  7  Mass.  38S;  14  Barb.  19;  4  Johns.  450;  29 
Mo.  206;  30  Ala.  603;  31  Ala.  649;  7  Gray,  55;  35  Conn.  568. 

(5)  3o  Ala.  313;  12  Cal.  275;  3  Duer,  (N.  Y.)  45. 

(/)  5  Blackf.  237;  50  111.  508;  36  111.59;  51  111.357;  ^o  Cal.  189;  15  Mass. 
82;  20  N.  H.  323;  24  Pick.  191,  194.  See  37  111.  341 ;  23  Wend.  480;  i  Chit. 
PI.  (11  Am.  ed.)  179,  1S5. 


TRESPASS.  549 


Injuries  to  personal  property — Where  the  action  lies,  etc. 

goods  under  an  execution,  and  advertises  them  for  sale,  but 
neglects  to  sell  them,  {u) 

If  a  distress  warrant  is  executed  in  the  night-time,  it  is  a 
trespass,  {v) 

The  statute  of  Illinois  {w)  in  force  July  i,  1872,  provides, 
that  if  an}'  officer,  by  virtue  of  any  execution  or  other  pro- 
cess, or  any  other  person,  by  any  right  of  distress,  shall 
take  or  seize  any  of  the  articles  of  property  exempted  by 
the  statute  from  levy  and  sale,  such  officer  or  person  shal) 
be  liable  to  the  party  injured  for  double  the  value  of 
the  property  illegally  taken  or  seized,  to  be  recovered  by 
action  of  trespass,  with  costs.  This  provision  is  similar 
to  that  contained  in  the  act  of  February  22,  1861.  {x) 
The  defendant  in  execution,  in  such  case,  may  proceed 
against  the  officer  who  seizes  his  property  exempted  by  the 
statute,  either  for  double  the  value,  or  the  simple  value, 
of  the  property  seized,  {y)  If  he  declares  in  the  common 
form  of  the  action  of  trespass,  without  any  reference  to  the 
statute,  he  is  only  entitled  to  recover  simple  damages  for 
the  trespass ;  if  he  claims  the  penalty,  he  should  declare 
specially  on  the  statute.  The  statute  only  gives  the  penalty 
against  the  officer  levying  the  execution ;  the  plaintiff"  in 
the  execution  can  not  be  made  a  party  to  the  suit,  {z) 

This  action  lies  for  any  immediate  injury  to  personal 
property,  occasioned  by  actual  or  implied  force,  though 
the  wrong-doer  may  not  take  away  or  dispose  of  the  prop- 
erty ;  as  for  shooting  or  beating  a  dog  or  other  live  ani- 
mals ;  or  for  hunting  or  chasing  horses,  cattle,  etc.  {a.) 

If,  however,  a  person  is  injured  by  the  dog  of  another, 

(«)  16  Vt.  393;  30  Pcnn.  264;  16  Eng.  L.  &  E.  501. 

{v)  i6  III.  283;  6  Carr.  &  Payne,  212;  Arcli.  Ivand.  &  Ten.  119. 

{w)  I  Starr  &  Curtis'  An.  Stat.  1114;  Rev.  Stat.  (1877)  485.  See  82  111. 
427  ;  90  III.  250. 

{x)  Gross'  Stat.  384. 

iy)   II  111.  584;  69  111.  337  ;  88  111.  229,  402. 

(3)  I  Gilm.  30.     See  15  III.  290;  26  111.  64;  3  Gilm.  578;  14  111.  1S4. 

{a)  3  Bla.  Com,  153;  9  Mich.  158;  6  Blackf.  258;  16  111.  103;  28  Geo. 
239;  39  J^.  H.  461 ;  60  111.  211;  13  Biadsv.  557;  14  Biadw.  324. 


550  TRESPASS. 


Injuries  to  personal  property — Where  th^  action  lies,  etc. 


or  the  peace  and  quiet  of  his  family  are  disturbed  by  it, 
and  there  is  no  other  way  of  preventing  it,  he  may  kill  the 
dog  without  becoming  liable,  [d)  So  a  person  is  justifia- 
ble in  killing  an  enraged  bull,  in  the  necessary  defense 
of  himself  or  of  his  family,  {c) 

It  is  not  in  general  necessary,  in  order  to  maintain  this 
action,  that  the  injurious  act  should  have  been  done  with  a 
wrongful  intent,  (d)  It  is  sufficient  that  the  act  was  com- 
mitted without  justifiable  cause,  though  accidentally  or  by 
mistake,  (e)  But  in  some  cases,  as  in  actions  against  pub- 
lic agents,  the  intent  may  be  frequently  material  in  deter- 
mining the  question  of  liability.  (_/")  And  when  a  sheriff, 
after  a  secret  act  of  bankruptcy  committed  by  A.,  takes 
his  goods  under  an  execution  against  him,  the  sheriff  can 
not  be  sued  by  the  assignees  in  trespass,  but  only  in  tro- 
ver, because  such  officers  ought  not  to  be  made  trespassers 
by  relation,  {g-) 

When  one  sues  and  recovers  in  replevin,  and  gets  a  re- 
turn of  the  property,  he  can  not  afterwards  sue  the  same 
defendant  and  another  person  in  trespass,  for  the  same 
transaction,  no  matter  whether  the  damages  in  replevin 
have  been  paid  or  not.  (//) 

The  validity  of  a  tax  may  be  brought  in  question  by  an 
action  of  trespass.  (/) 

The  fact  that  the  plaintiff  in  an  action  of  trespass  kept  a 
bawdy  house,  is  no  defense  for  entering  the  house  and  car- 
rying away  the  goods  therefrom,  (j) 

{l>)  23  Wend.  354;  6  Barr,  318;  66  111.  309. 

(c)  7  Porter,  106. 

{d)  2  Hill.  Torts,  74;  i  Chit.  PI.  (11  Am.  ed.)  130,  166;  3  Sneed,  20;  6 
Blackf.  258. 

(.')  2  Hill.  Torts,  74;  44  N.  H.  211 ;  6  Wis.  319.     See  67  III.  132. 

(/)  I  Chit.  PI.  (11  Am.  ed.)  130,  77;  6  Taunt.  29;  2  Bing.  156;  4  M.  & 
Sel.  27;  2  B.  &  C.  703,  707,  710;  4  D.  &  R.  195,  S.  C. 

{g)  I  Chit.  PI.  (11  Am.  ed.)  130;  i  Term,  4S0;  i  Lev.  1S3.   See  \  Burr.  20. 

(A)  24  111.  580. 

(/)39lll.  117. 

ty)  16  111.  277. 


TRESPASS.  551 


Injuries  to  personal  property — Who  may  maintain  the  action,  etc. 

If  a  trespasser  cuts  wheat,  he  can  not  deduct  from  its 
value  his  labor  while  trespassing,  but  the  plaintiff  may  re- 
cover the  same  as  if  he  himself  had  performed  the  whole 
labor  of  harvesting.  (^) 

Who  may  maintain  the  action. — Possession,  actual  or 
constructive,  with  property  in  the  chattel,  general  or  qual- 
ified, is  necessary  to  sustain  trespass.  (/)  But  a  .person 
who  has  the  absolute  or  general  property  may  support  this 
action,  although  he  has  never  had  the  actual  possession,  or 
although  he  has  parted  with  the  possession  to  a  carrier, 
servant,  etc.,  giving  him  only  a  bare  authority  to  carry  or 
keep,  etc.,  not  coupled  with  an  interest  in  the  propert}^.  {in) 
And  executors  and  administrators  may  support  trespass  for 
an  injury  to  personal  property,  committed  after  the  death 
of  the  testator  or  intestate,  and  before  the  probate  or  ad- 
ministration was  granted ;  and  so  may  a  legatee,  after  the 
executor  has  assented  to  the  legacy,  for  an  injury  done  be- 
fore such  assent.  («) 

The  general  property  in  goods  and  chattels,  priiiiajacie, 
for  all  civil  purposes,  draws  to  it  the  possession  ;  [o)  but  if 
the  general  owner  parts  with  his  possession,  and  the  bailee, 
at  the  time  when  the  injury  is  committed,  has  the  exclusive 
right  to  use  the  property,  the  inference  of  possession  is  re- 
butted, and  the  right  of  possession  being  in  reversion,  the 

{k)  19  111.  631. 

(/)  5  Vt.  97;  II  Pick.  382;  21  Pick.  367;  13  Johns.  141,  561 ;  i  N.  H.  no; 
10  Wend,  no;  6  Blackf.  136;  4  J- J.  Marsh.  iS;  3  Scam.  10.  See  47  Maine, 
416. 

(7«)  I  Chit.  PI.  (11  Am.  ed.)  169;  7  Term,  12;  16  East,  33 ;  9  Johns.  43:5; 
30  Vt.  221;  15  Ark.  459;  3  Day,  49S;  11  Johns.  2S5 ;  34  Ala.  159;  2  Head, 
39S;  14  La.  An.  732. 

(«)  Bac.  Abr.  E.x'r,  h,  1 ;  2  Saund.  47,  a;  i  Chit.  PI.  (11  Am.  ed.)  169. 

(0)  3  Day,  272;  7  Conn.  235;  2  Saund.  47,  a,  b,  d;  27  111.  134;  2  Pick. 
121 ;  9  Pick.  156;  27  Conn.  538. 


552  TRESPASS.     ' 

Injuries  to  personal  property — Against  w  horn  it  will  lie,  etc. 

general  owner  can  not  support  trespass.  (^)  If  however 
property  is  loaned  for  an  indefinite  time,  the  owner  may 
maintain  the  action  against  a  person  w^ho  takes  it  torti- 
ously.  {q) 

Possession  of  personal  propert}^  is  evidence  of  ownership, 
and  the  possessor  may  recover  in  trespass  against  any  per- 
son who  may  take  it  from  him,  unless  such  person  has  a 
paramount  right  to  the  possession  of  such  property,  (r) 

Where  standing  crops  are  sold,  th\e  possession  is  con- 
structively in  the  purchaser  until  it  is  time  to  harvest  them, 
for  the  law  does  not  require  him  to  take  manual  possession 
of  them  until  that  time.  (5)  And  in  such  case  the  pur- 
chaser is  not  only  entitled  to  a  reasonable  time  after  ihe 
crop  matures,  to  gather  it,  but  before  the  vendor  can  right- 
fully turn  his  cattle  into  the  field,  he  must  give  reasonable 
notice  to  the  purchaser.  (/) 

An  officer  has,  by  virtue  of  a  seizure  on  execution  or  at- 
tachment, sufficient  property  in  the  goods  seized  to  main- 
tain trespass;  {tc)  but  the  plaintiff'  in  execution  or  attach- 
ment, or  the  officer's  custodian  or  receiptor,  has  not.  [v) 

Against  whom  it  -will  lie,  etc. — This  action  will  lie  not 
only  against  individuals,  but  municipal  corporations,  (w) 
So  a  railroad  company  is  liable  if  its  servants,  or  lessees, 

(/)  8  Johns.  4S2;  II  Id.  385;  7  Conn.  235;  5  Vt.  274,  328;  30  Vt.  221:  3 
Scam.  10;  9  Cow.  6S7 ;  i  Shepley,  236;  9  Met.  233;  38  N.  H.  171;  35  Ala. 
725;  I  Chit.  PI.  (11  Am.  ed.)  169. 

{q)  3  Scam.  10;  2  Pick.  121. 

(r)  20  111.  37 ;  34  111.  173 ;  14  La.  An.  732  ;  47  Maine,  416 ;  1 1  Johns.  132 ; 
13  Johns.  275;  2  Wend.  466;  13  Wend.  143;  13  Vt.  558;  2  Head,  398;  5 
Flor.  472 ;  I  Dutch.  (N.  J.)  443;  24  Maine,  230;  34  Ala.  156;  35  Barb.  298. 

(5)19111.631. 

(^)  48  111.  493. 

(?«)  I  Pick.  232;  13  Mass.  394;  4  Zabr.  (N.  J.)  351  ;   14  Bradvv,  324. 

(t>)  2  Mass.  514;   13  Mass.  394. 

(zc^)  23  III.  332;  5  Ind.  252;  12  Rich.  (S.  C.)  L.  82. 


TRESPASS.  553 

Injuries  to  real  property — Where  the  action  lies,  etc. 

or  the  contractors  for  the  construction  of  the  road,  in  using 
or  building  such  road  commit  a  trespass,  (x) 

Where  several  persons  commit  a  trespass,  they  are  jointly 
and  severally  liable  ;  and  the  acts,  declarations  and  knowl- 
edge of  any  one  of  them  may  be  chargeable  upon  all,  if 
they  are  shown  to  have  acted  in  concert,  (y)  In  this  action 
there  are  no  accessories.  The  person  who  commands  or 
approves,  is  equally  guilty  with  the  one  who  performs  the 
act;  (z)  and  if  the  evidence  authorizes  exemplary  damages 
against  one,  the  other,  if  he  is  shown  to  have  acted  in  con- 
cert with  him,  is  liable  to  the  same  extent,  (a)  The  jury 
can  not  discriminate  between  joint  trespassers,  and  assess 
damages  against  them  severally,  according  to  the  relative 
enormity  of  their  offenses;  (d)  but  the  jury  ma}^  find  one 
defendant  guilty,  and  acquit  the  other,  (c) 

III.       INJURIES    TO    REAL    PROPERTY. 

Trespass  is  the  proper  remedy  for  a  wrong  done  by  break- 
ing through  an  inclosure,  and  coming  into  contact  with  any 
corporeal  hereditament  of  which  another  is  the  owner  and 
in  possession,  whereby  a  damage  has  ensued.  There  is  an 
ideal  fence,  extending  upwards  and  downwards  indefinitely, 
which  encircles  every  man's  land ;  the  entry,  therefore,  is 
breaking  through  this  inclosure,  and  this  generally  consti- 
tutes by  itself  a  right  of  action.  There  must  have  been 
some  injury,  however,  to  entitle  the  plaintitfto  recover,  for 
a  man  in  a  balloon  may  legally  be  said  to  break  the  close 
of  the  plaintiff,  when  he  passes  over  it  as  he  is  wafted  by 

C??)  22  111.  105.  See  23  III.  332 ;  20  111.  335,  623 ;  15  111.  72 ;  5  Ind.  252. 

(jk)  23  111.  403;  28  Ala.  236;  21  Mo.  3S7;  7  Jones  (N.  C.)  L.64. 

(2)  I  Scam.  253;  20  III.  37;   i  Chit.  I'l.  67;  69  HI.  273;  S3  111.  390. 

(a)  28  Ala.  236;   15  Ark.  452.     See  I  Scam.  253;  69  111.  478. 

(d)  I  Com.  B.  iS;  3  Hill.  Torts,  315;  11  Ind.  417;  15  Ark.  552;  i  Ala. 
212.     But  see  cases  cited  cotitra,  2  Hill.  Torts,  316. 

(c)  2  Hill.  Torts,  312;  7  Cal.  152;  14  Ind.  317;  15  Ind.  74;  S  Clarke, 
(Iowa,)  74;  45  Maine,  17. 


554  TRES'PASS. 

Injuries  to  real  property — Where  the  action  lies,  etc. 

the  wind,  but  as  the  owner's  possession  is  not  by  that  act 
incommoded,  trespass  could  not  probabl}'  be  maintained  ; 
yet  if  any  part  of  the  machinery  should  fall  upon  the  land, 
the  aeronaut  could  not  justify  an  entry  to  remove  it,  which 
proves  that  the  act  is  not  justifiable,  {d)  But  the  slightest 
inj\ny,  as  treading  down  the  grass,  is  sufficient,  (e) 

It  is  not  requisite,  to  maintain  the  action,  that  there  should 
have  been  a  wrongful  intent  in  committing  the  injurious 

act.  (/)_;. 

Where  an  injury  is  occasioned  by  the  digging  of  a  ditch 
on  one's  own  land,  whereby  water  is  thrown  upon  the  land  of 
another,  the  remedy  of  the  latter  is  case,  and  not  trespass,  (g-) 

An  action  for  entering  upon  the  close  of  the  plaintiff  is 
sustained  by  proof  of  a  trespass  upon  any  part  of  the  close 
described,  {/i) 

A  person  who  enters  upon  land  without  any  claim  or  color 
of  right  or  title,  and  keeps  possession,  is  a  trespasser,  (i) 

Any  person  may  remove  a  fence  erected  across  a  high- 
way, without  being  guilty  of  a  trespass,  (j) 

"Where  a  road,  after  its  survey  and  location,  has  not  been 
opened  for  the  use  of  the  public,  nor  the  proper  notice  given 
to  the  owner  of  the  land  to  remove  his  fence,  neither  the 
commissioners  nor  any  other  person  can  remove  the  fence 
without  becoming  trespassers,  (k) 

{d)  2  Bouv.  Law  Die.  6oi ;  19  Johns.  3S1. 

{e)  2  Johns.  357 ;  9  Johns.  1 13  ;  2  Mass.  127 ;  4  Mass.  266.  See  i  Chit.  PI. 
159;  15  III.  53. 

{/)  3  Lev.  37;  I  Cainpb.  497;  2  Campb.  465;  i  Chit.  PI.  150;  29  111.  135; 
5  Wis.  55;  2  Sneed,  20;  2  Greenl.  Ev.,  sec.  623;  5  Mass.  341 ;  ii  Mass.  500, 
507.  See  15  111.  53 ;  20  Miss.  322. 

iff)  40  111.  349. 

{k)  7  Gray,  441 ;  20  N.  H.  35.  See  2  Greenl.  Ev.,  sec.  618,  a. 

(/)  2  Johns.  22. 

(y)  19  111.  634;  Bac.  Abr.  Highways,  E. 

ik)  25  111.  51S;  9  Ind.  103.     See  25  111.  153. 


TRESPASS.  555 

Injuries  to  real  property — Where  the  action  lies,  etc. 

The  nature  of  the  real  property  affected  must  in  general 
be  something  tangible  and  fixed,  such  as  a  house,  a  room, 
an  outhouse  or  other  building,  or  land ;  but  the  term  close 
is  technical,  and  signifies  the  interest  in  the  soil,  and  not 
merely  a  close  or  inclosure  in  the  common  acceptation  of 
that  word,  (w/) 

To  maintain  an  action  of  trespass  to  real  estate,  the  plaint- 
iff must  have  the  actual  or  constructive  possession,  («)  and 
though  the  title  may  come  in  question,  it  is  not  essential 
that  it  should.  (c») 

Any  person  in  the  actual  possession  of  land,  though  with- 
out any  other  title,  may  maintain  the  action  against  a  stran- 
ger, (^)  but  not  against  a  person  having  concurrent  posses- 
sion, {q) 

In  Illinois,  it  is  held  that  he  ma}^  maintain  it  against  the 
owner  of  the  legal  title,  (;-)  as  the  owner  has  no  right  to 
make  a  forcible  entry,  even  against  a  tenant  holding  over, 
or  upon  any  other  person  wrongfully  in  possession.  The 
law  in  such  cases  (the  statute  of  torcible  entry  and  detainer) 
has  given  him  a  remedy,  and  he  must  resort  to  it.  (5) 

The  possession,  where  that  is  alone  relied  on,  must  be 
an  actual  and  not  a  constructive  possession.  (/)  Yet 
while  it  is  true  that  the  action  can  only  be  maintained 
for  any  injury  to  the  possession,  it  is  not  necessary  that 
such  possession  should  be  visible   and  actual,  for  unless 

(»0  7  East,  207;  6  East,  ii;4;  Str.  1004;  1  Burr.  133. 

(«)  8  Blackf.  575  ;  38  N.  H.  212 ;  32  111.  173  ;  2  Gieenl.  Ev.,  Sec.  614.  See 
38  Maine,  80;  17  Bradvv.  409;  II5  111.  177;  II8  111.  306;  I  Scam.  iSl;  85  III. 
370;  74  111.  242. 
^  {o)   4  Blackf.  455;  39  N.  H.  196;  32  111.  173  ;  91  111.  179;  1 16  111.  488. 

(/)  3  Met.  239;  14  Pick.  297;  4  id.  305;^  11  Cal.  104;  39  N.  H.  196;  23 
Geo.  590;  32  111.  173;  6  Gray,  552;  11  Lid.  417;  54  111.  175. 

{q)   3  Met.  239. 

(r)  42  111.  399  ;  68  111.  53. 

(i)  51  111.  467;  41  111.  279;  40  111.  506  ;  48  111.  261.  But  see  23  111.  81  j  29 
Penn.  St. -26;  67  111.  446;  90  111.  208. 

(/)  I  Scam.  181 ;  31  Penn.  St.  304;  5  Cal.  164.  See  40  111.  349. 


556  TRESPASS. 

Injuries  to  real  property — Where  the  action  lies. 

there  is  an  adverse  occupancy,  the  ownership  in  fee  draws 
to  it  the  legal  possession,  {it) 

,  If  the  premises  are  actually  occupied,  the  action  must  he 
brought  by  the  person  in  possession  ;  if  they  are  vacant 
and  unoccupied,  the  person  having  the  legal  title  has  the 
right  of  possession,  and  must  bring  the  action,  [v)  In  the 
latter  case,  the  real  owner  has  the  constructive  posses- 
sion, (w)  But  if  the  plaintiff  fails  to  show  paramount  title, 
or  possession,  at  the  time  the  injuries  were  committed,  he 
can  not  recover,  {x) 

A  tenant  at  sufferance  can  not,  by  the  common  law,  have 
trespass  qtiare  clausiim  f regit  against  his  landlord,  (y) 
And  a  lessor  can  not  maintain  trespass  against  a  stranger, 
while  there  is  a  tenant  in  possession,  {z) 

Trespass  being  a  possessory  action,  it  is  not  necessary 
that  the  right  should  come  in  question.  But  if  it  does 
come  in  question,  as  under  a  plea  of  libcrum  tcnancntiun, 
and  the  plaintiff'  has  neither  a  right  to  the  property 
nor  to  the  possession,  but  has  a  naked  possession,  the 
owner  of  the  fee  has  the  right  of  entry,  and  will  not  be 
liable  in  trespass  for  exercising  the  right  in  a  peaceable 
manner,  {a) 

Where  a  person  who  has  entered  upon  land,  under  a  parol 
agreement  for  the  purchase  of  the  same,  cuts  trees,  and 
afterwards  rescinds  the  agreement,  he  is  a  trespasser,  {b) 

Where  the  owner  of  land  agrees  with  another  that  he 
may  sow  the  land  on  shares,  they  may  maintain  a  joint 

(«)  51  111.  396.     See  19  Johns.  3S5;  12  id.  408;  42  Maine,  565. 

(v)  32  111.  173;  15  111.  560;  I  Johns.  511 ;  12  id.  1S3 ;  9  Cow.  39;  11  Conn. 
60;  4  Pick.  305;   15  id.  32^  5  Harr.  320;   21  Ala.  556. 

(w)  2  Gilm.  652;  S  Clarke,  74:  4  Mich.  406;  27  111.  134;  2  Scam.  224;  8 
Cow.  115;  10  Wend.  630;  29  Barb.  9;  10  Foster,  379. 

{x)  21  111.  279;  2  Dutch.  (N.  J.)  525, 

(j)  13  Pick.  36;  4  Johns.  150.     See  51  111.  467. 

{z)  I  Johns.  511 ;  8  Pick.  235;  3  Jones'  Law  (N.  C.)  283  ;  39  Maine,  28. 

((?)  32  111.  173;  3  Scam.  218;  2  Gilm.  652. 

{b)  9jo]ms.  23;  35  N.  H.  563. 


TRESPASS.  557 


Injuries  to  real  property — Where  the  action  lies,  etc. 

action  of  trespass  against  a  third  person,  who  cuts  and  car- 
ries away  the  crop,  (c) 

The  owner  of  real  estate  in  the  possession  of  a  lessee, 
other  than  at  will,  can  not  maintain  trespass  for  an  injur}- 
to  his  reversionary  interest ;  {d)  but  he  can  where  the  lease 
is  at  will  only,  (e) 

Trespass  wdll  lie,  by  the  owner  of  real  estate,  against  a 
person  committing  waste  by  permission  of  the  tenant  at 
will.  {J~)  But  it  will  not  lie  for  the  reversioner,  against  a 
person  committing  waste  under  the  authority  of  a  tenant  in 
dower,  {g) 

After  an  entry  on  a  tenant  at  sufferance,  the  owner  may 
have  trespass  quare  clausum  /regit  against  him,  iji)  bul 
not  before.  (^) 

A  person  disseized  can  not,  until  entry,  maintain  tres- 
pass, (y ) 

An  overseer  of  highways,  in  an  action  of  trespass  against 
him,  can  not  justify  his  trespass  by  showing  an  order  from 
the  commissioners  to  open  a  road,  where  a  road  or  high- 
way has  not  been  legally  laid  out.  {k) 

The  rule  of  the  common  law,  which  requires  the  owner 
of  cattle  to  keep  them  on  his  own  land,  is  not  in  force  in 
Illinois,  Indiana,  Missouri,  Iowa  and  Ohio;  and  in  order 
to  maintain  an  action  for  a  trespass  by  cattle,  the  owner  of 
the  close  must  show  that  it  was  protected  by  a  good  and 
sufficient  fence.  (/) 

But  where  a  township,  under  the  township  organization 

(c)  3  Johns.  216. 

(</)  8  Pick.  235;  8  Mass.  411,  415;  13  Johns.  183;  2  Dutch.  (N.J.)  525. 
(e)  II  Mass.  520;  15  Pick.  102;  32  N.  H.  32. 
(/)  21  Pick.  367. 

^g)  23  Pick.  88;  8  Mass.  411,  415. 
(//)  17  Pick.  263;  25  Penn.  St.  186. 
(«')  17  Mass.  282;  14  Pick.  535;  14  Mass.  491. 
(/)  ID  Pick.  161;  17  Mass.  299;  i  Met.  528. 
{k)  16  111.  308,  365;  29  111.  135;  2  Met.  (Ky.)  482;  85  III.   170. 
(/)   13  111.  609;  5  Gilm.  530;  5  Clarke,  (Iowa,)  490;  26  Mo.  441 ;  4  Ohio, 
474;  7  Ind.  317.      See  54  III.  469;  43  111.  450;  85  111.  334;  70  ill.  291. 


558  TRESPASS. 

Commencement  of  the  action — Praecipe,  etc. 

laws,  has  adopted  rules  prohibiting  cattle  from  running  at 
large,  and  there  are  no  regulations  requiring  fences,  the 
owner  of  such  cattle  is  liable  for  injuries  occasioned  by 
them  in  uninclosed  fields ;  {m)  and  trespass  may  be 
brought  to  recover  for  such  injuries,  although  the  prohib- 
iting ordinance  of  the  town  provides  a  special  remedy,  {n) 

COMMENCEMENT    OF    THE    ACTION. 

An  action  of  trespass,  like  most  other  personal  actions 
at  law,  is  commenced  b}^  suing  out  a  summons,  or  a  capias 
ad  respo7idendtim ;  (o)  and  in  some  cases  security  for  costs 
is  required,  (p) 

Kfrcecipe  may  be  filed,  in  the  following  form : 

Precipe  fo7'  summons  or  capias. 

In  the Court  of  the  County  of ,  in  the  State  of 

Illinois. 

A.  B.  ^ 
vs.     >  Trespass.     Damages  $ . 

CD.)  m  m 

The  clerk  of  the  said  court  will  issue  a  summons  {or 
'■'■capias   ad  respondendum'''),   as   above,  directed  to  the 

sheriff  of  the  county  of  ,  and  returnable  to  the 

term,  i8 . 

{Date.)  E.  F.,  Attorney  for  Plaintiff. 

To  J.  K.,Cleik,  etc. 

For  a  form  of  affidavit  for  a  capias  ad  respondendum^ 
see  No.  3,  ante,  page  52. 

{m)  43111-450;    76  111.  338. 
i^n)  41  111.  261. 
(o)  Ante,  43-45. 
(/)  A,Ue,  39. 


I 


TRESPASS.  559 


The  declaration,  etc. 


The  declaration. — The  declaration  should  state,  ist. 
The  matter  or  thing  affected  ;  2dly.  The  plaintiff's  right 
thereto;  3dly.  The  injury;  and  4thly,  the  damage  sus- 
tained by  the  plaintiff.  (^) 

15^.  The  matter  or  thing  affected. — In  actions  brought 
for  injuries  to  real  property,  the  qualit}'^  of  the  realty,  as 
whether  it  consists  of  houses,  lands,  or  other  corporeal 
hereditaments,  should  be  shown,  {r)  In  trespass  to  lands, 
the  term  close  is  proper,  although  the  ground  is  not  in- 
closed, as  it  imports  the  exclusive  right  of  possession  and 
interest  in  the  soil.  (5) 

In  actions  for  injuring  or  taking  away  goods  and  chat- 
tels, it  is  generally  necessary  to  state  their  qualit}^  quan- 
tity or  number,  and  value  ;  {t)  the  assigned  reason  being 
that  a  former  recovery  could  not  otherwise  be  pleaded  in 
bar  of  a  second  action  for  the  same  goods,  neither  could 
the  defendant  properly  defend  himself,  {li)  Therefore  it  is 
in  general  insufficient,  even  after  judgment  by  default  or 
verdict,  to  allege  tha-t  the  defendant  injured  or  took,  etc., 
"  divers  goods  and  chattels"  of  the  plaintiff,,  without  giv- 
ing any  description  of  them,  iv) 

In  trespass,  trover  and  case,  less  particularity  is  required 
than  in  detinue  and  replevin,  because  it  is  only  in  the  two 
latter  forms  of  action  that  tlie  plaintiff  can  claim  or  recover 
the  goods  themselves,  {w) 

In  the  three  former  actions,  damages  only  are  recovera- 
ble, and  the  specification  of  quality  and  quantity  in  a  gen- 

{q)  I  Chit.  PI.  (11  Am.  ed.)  376. 

(r)Id.;3C.  &P.  331- 

(5)  I  Chit.  Pi.  (11  Am.  ed.)  376;  7  East,  204;  Vin.  Abr.  Fences. 
(/)  I  Chit.  PI.  (11  Am.  ed.)  377;  2  Saund.  74,  n.  i ;  8  Moore,  379      See 
13  Johns.  446. 
(«)  M'Cl.  27S;  II  East,  576. 

(f)  7  Taunt.  642 ;  i  Moore,  3S6,  S.  C. ;  S  Id.  379. 
(w)  2  Saund.  74,  n.  i ;  i  Chit.  PI.  (11  Am.  ed.)  377. 


56o  TRESPASS. 


The  declaration — Plaintiff's  right  or  interest. 


eral  way  is  allowed;  as  "four  horses,"  "two  packs  of 
flax,"  "two  ricks  of  hay,"  a  "library  of  books,"  etc.  (x) 

Perhaps  less  particularity  may  be  required  where  the 
gravamen  or  gist  of  the  action  is  the  breaking  and  injuring 
of  a  house,  etc.,  and  the  injury  to  goods  is  laid  chiefly  as 
aggravation;  as  trespass  for  breaking,  etc.,  a  house,  and 
taking  "  several  keys"  belonging  to  the  doors  thereof,  {y) 
or  damaging  "the  goods  and  chattels  therein,"  and  wrench- 
ing open  and  injuring  "the  doors  thereof."  {z) 

With  respect  to  the  quality  or  species  of  the  goods,  the 
plaintiff  is  perhaps  bound  to  prove  the  fact  as  laid  ;  {a)  but 
with  regard  to  the  quantity  or  number,  and  value,  of  the 
goods,  he  may  prove  less  than  he  charges  in  his  declara- 
tion, but  he  can  not  prove  more,  although  the  statement  is 
under  a  videlicet;  as  if  the  declaration  is  for  "divers,  to 
wit,  ten  horses,"  he  may  show  an  ^injury  to  one  horse,  but 
not  to  eleven  horses.  (^)  It  is  therefore  prudent  to  lay  the 
quantity  to  an  extent  clearly  adequate  to  cover  the  largest 
possible  amount,  but  at  the  same  time  according  to  the 
facts,  {c) 

2dly.  The  ■plaintiff^s  right  or  interest. — It  is  laid  down 
as  a  fundamental  rule,  in  showing  title  in  actions  ex  delicto., 
that  against  a  mere  wrong-doer,  or  person  apparently  hav- 
ing no  color  or  right,  mere  possession  suffices,  and  a 
special  statement  of  title  is  unnecessary,  {d)  In  trespass, 
trover,  detinue,  case  or  replevin,  for  injuring  or  taking  away 
goods,  etc.,  the  plaintiff's  right  to  or  interest  in  the  goods, 
either  as  absolute  owner  or  as  having  a  limited  right 
therein,  is  not  otherwise  described  in  the  declaration  than 

(»)  Breese,  26;  4  Munf.  251 ;  2  Saund.  74,  n.  i ;  Steph.  349,  350. 
(j*)  Salk.  643;  2  Saund.  74  b,  n.  i ;  Stephen,  (2  ed.)  350. 
iz)  I  Chit.  PI.  (11  Am.  ed.)  378;  3  Wils.  292. 
(a)  See  Stephen,  (2  ed.)  352;  i  Chit.  PI.  (11  Am.  ed.)  378. 
((5)  See  8  'i'aunt.  107;  M'Clel.  270;  Breese,  26;  4  Munf.  251. 
(c)  I  Chit.  PI.  (II  Am.  ed.)  378. 

id)  I  Chit.  PI.  (ii  Am.  ed.)  379;  Com.  Dig.  Plead.  C.  39,  41;  Tidd, 
(9  ed.)'443:  Steph.  (2  ed.)  356;  i  East,  212. 


TRESPASS.  S6i 


The  declaration — Statement  of  injury,  etc. 


by  the  averment  that  they  were  the  goods  "of  the  plaintiff," 
or  that  he  was  "lawfully  possessed  of  them,  as  of  his  own 
property."  When  the  plaintiff  has  not  a  possessory  right, 
and  his  interest  in  the  chattel  is  reversionary,  it  must  be 
expressly  so  described  in  the  declaration,  which  must  then 
be  framed  in  case,  {e) 

Upon  the  same  principle,  in  trespass  for  a  M^rong  relating 
to  land,  or  other  real  property,  a  special  or  particular  title 
in  the  plaintiff  need  not  be  shown  in  the  declaration.  The 
averment  in  describing  the  trespass,  that  the  close  or  house, 
etc.,  in  reference  to  which  it  was  committed,  was  the  close, 
etc.,  "  of  the  plaintiff,"  or  other  equivalent  allegation,  is 
sufficient ;  and  under  it  may  be  given  in  evidence  any  title 
or  interest  in  possession  which  is  adequate  to  the  support  of 
the  form  of  action,  under  the  circumstances  of  the  case,  (y) 

If  no  property  or  interest  in  the  subject-matter  of  the 
suit  is  alleged  to  have  existed  or  been  vested  in  the  plaint- 
iff at  the  time  the  injury  was  committed,  the  declaration  is 
substantially  defective  ;  the  objection  being  the  total  omis- 
sion, not  the  defective  statement,  of  a  title,  (g)  But  the 
error  in  the  declaration  may  be  cured,  if  the  plea  adinits 
the  plaintiff's  property,  (/i) 

Sdly.  Statement  of  the  injury. — In  declarations  in  tres- 
pass, which  lies  only  for  wrongs  immediate,  and  committed 
with  force,  the  injury  is  stated  without  any  inducement  of 
the  defendant's  motive  or  intent,  or  of  the  circumstances 
under  which  the  injury  was  committed.  The  injury  should 
be  stated  directly  and  positively,  and  not  by  way  of  recital  ; 
and  therefore  a  declaration  charging  "  for  that  whereas," 


(<)  I  Chit.  PI.  (II  Am.ed.)  380;  2  Saund.  279,  n.  13;  Steph.  (2  ed.)  355. 

•e  14  Serg.  &  Ravvle,  99;  i  Met.  26. 

(/)  I  Chit.  PI.  I II  Am.  ed.)  3S0;  2  Saund.  113  a,  n.  i ;  Com.  Dig.  Plead. 


See  14  Serg.  &  Ravvle,  99;  i  Met.  26. 

(/)  I  Chit.  PI.  Ill 
3.  M.  9;  6  Rand.  457 

C  jT)  -  Saund.  379,  n.  13  ;  Com.  Dig   Plead.  3,  M.  9. 

{h)  I  Chit.  PI.-  ([I  Am.  ed.)  379;  i  Sid.  1S4. 

36 


S62  TRESPASS. 


The  declaration — Statement  of  injury,  etc. 


or  "wherefore,"  the  defendant  committed  the  trespass,  is 
bad  on  special  demurrer.  (/) 

In  the  statement  of  the  trespasses,  tlire  words  "with  force 
and  arms"  {vi  ct  armis)  should  be  adopted;  and  the  con- 
clusion of  the  declaration  should  be  "against  the  peace," 
etc.,  [contra  -paccm,  etc.);  {J)  but  an  omission  in  either 
respect  is  onl}'-  cause  of  special  demurrer,  and  is  aided  by 
verdict,  {k) 

It  is  usually  sufficient  to  describe  the  tortious  act  or  injury 
generally,  (/)  without  setting  out  the  particulars  of  the  de- 
fendant's misconduct.  And  it  will  in  general  sliffice  that 
the  tort  is  correctly  laid  in  substance,  though  the  statement 
is  not  literally  true,  provided  there  is  no  material  misstate- 
ment. Thus,  when  the  declaration  charged  that  the  de- 
fendant struck  the  plaintiff's  cow,  etc.,  whereof  she  died, 
'  it  was  held,  after  verdict,  that  there  was  no  fatal  variance, 
although  the  proof  was  that  the  plaintiff  was  obliged  to  kill 
the  cow  to  shorten  her  misery,  in  consequence  of  the  de- 
fendant's violence,  (w) 

In  an  action  ex  delicto,  upon  proof  of  part  only  of  the 
inj\ny  charged,  or  of  one  of  several  injuries  laid  in  the 
same  count,  the  plaintiff  will  be  entitled  to  recover  ;pro 
tan  to,  provided  the  part  which  is  proved  affords  pe?'  se  a 
sufficient  cause  of  action  ;  for  torts  are,  generally  speak- 
ing, divisible,  {n) 

The  statement  of  the  time  of  committing  the  injury  is 
seldom  material ;   [o)   and  though  a  time  ought  to  be  al- 

(/)  2  Salk.  637;  I  Stra.  621;  Andr.  2S2 ;  7  Johns,  in;  2  Mass.  364;  4 
Hen.  &  Munf.  277.  See  7  Cranch,  158. 

(/)  2  Chit.  PI.  (11  Am.  ed.)  387,  38S. 

(/•)  Id.  Stat.  4  &  5  Anne,  c.  16,  s.  i ;  Gross'  Stat.  12,  13.  See  14  Serg.  & 
Rawle,  403;  5  Vt.  73;   14  Johns.  134;  2  McC.  386;   i  Blackf.  56. 

(/)  I  Chit.  PI.  (11  Am.  ed.)  391.     See  Id.  232;   11  Price,  235. 

(m)  1  Chit.  PI.  (11  Am.  ed.)  391 ;  4  D.  &  R.  202 ;  4  Barn.  &  Cres.  255. 

(«)  1  Chit.  PI  (II  Am.  ed. )  293;  2  East,  438;  2  Bla.  790;  3  Term,  645;  5 
Taunt.  27;  4  M.  &  Sel.  349;  45  111.  6. 

((?)  I  Chit.  PI.  fii  Am.  ed.)  393. 


TRESPASS.  563 


The  declaration — Statement  of  injury,  etc. 


IcCTed,  {f)  the  injury  maybe  proved  to  have  been  committed 
either  on  a  day  anterior  or  subsequent  to  that  laid  in  the 
declaration,  iq)  And  it  seems  an  omission  to  allege  a  time 
would  be  aided  even  after  a  judgment  by  default,  [r) 

Where  the  injury  was  capable  of  being  committed  on 
several  days,  as  in  trespass  to  land,  etc.,  it  maybe  described 
as  having  been  committed  on  such  a  day,  "and  on  divers 
other  days  and  times  between  that  da}"  ^nd  the  commence- 
ment of  this  suit ; "  and  in  such  case  the  first  day  should  be 
laid  anterior  to  the  first  injurious  act,  because  the  plaint 
iff"  would  not  be  permitted  to  give  in  evidence  repeated  acts 
of  trespass,  unless  committed  during  the  space  of  time  laid 
in  his  declaration  ;  though  he  might  recover  as  to  a  single 
trespass  committed  before  the  first  day.  (5) 

Where  a  particular  space  of  time  is  assigned  by  a  con- 
tinuando  for  the  torts,  it  seems  to  become  matter  of  descrip- 
tion, and  not  a  mere  formal  allegation  of  time;  but  the 
continuando  may  be  waived,  and  one  trespass  even  before 
the  first  day  laid  may  be  proved,  for  a  continuando  ought 
not  to  place  the  plaintiff"  in  a  worse  situation  than  if  one 
trespass  only  was  laid,  {f)  But  where  the  act  complained 
of  was  single  in  its  nature,  as  an  assault,  it  would  be  de- 
murrable to  state  that  it  was  committed  ' '  on  divers  days  and 
times."  {ii) 

The  -place  is  only  material  in  local  actions,  as  for  inju- 
ries to  real  property,  etc.  ;  {v)  and  as  a  general  rule,  it  is 
injudicious  to  give,  when  not  necessary  to  do  so,  a  partic- 

(^)  2  Harr.  i.     See  5  Taunt.  2,  15. 

(7)  Co.  Lit.  2S3,  a ;  i  Saund.  24,  n.  i ;  2  Id.  295,  n.  2. 

(r)  13  East,  407. 

{s)  I  Chit.  PI.  (II  Am.  ed.)  393;  1  McC.  165;  Stra.  1095;  Salk.  639;  i 
Stark.  351 ;  Co.  Lit.  283.     See  33  111.  176;  5  Mass.  266. 

(0  I  Chit.  PI.  (11  Am.  ed.)  394.  See  2  Id.  847,  n. ;  Gould's  PI.,  cap.  3, 
sec.  83,  et  seq. 

(m)  Id. ;  6  East,  395,  391.  But  see  2  Bos.  &  Pul.  425 ;  Phillips'  Ev.  134; 
also  2  Mass.  50. 

(f)  I  Chit.  PI.  (11  Am.  ed.)  394,  26S.  See  iS  111.  403;  i  Caine,  167;  15 
Mass.  2S4;  2  Humph.  425;  2  Denio,  639;  10  Serg.  &  Rawle,  114. 


564  TRESPASS. 

The  declaration — Damages,  etc. 

ular  local  description,  lest  there  should  be  a  variance  be- 
tween the  declaration  and  the  proof,  (w) 

dfthly.  The  damages. — The  general  rule  is  well  settled, 
that  the  plaintiff  can  recover  no  greater  damages  than  are 
laid  in  his  declaration  ;  {x)  they  should  therefore  be  laid 
sufficiently  high  to  cover  the  largest  amount  that  may  be 
shown  by  the  proof. 

Damages  are  either  general  or  special.  Those  which 
necessarily  result  from  the  injury  are  termed  general  dam- 
ages, being  shown  under  the  ad  dajnmini,  or  general  alle- 
gation of  damages,  at  the  end  of  the  declaration  ;  for  the 
defendant  must  be  presumed  to  be  aware  of  the  necessary 
consequences  of  his  conduct,  and  therefore  can  not  be 
taken  by  surprise  in  the  proof  of  them.  Some  damages 
are  alwavs  presumed  to  follow  from  the  violation  of  an}/- 
right  or  duty  implied  by  law;  and  therefore  the  law  will 
in  such  cases  award  nominal  damages,  if  none  greater  are 
proved.  But  where  the  damages,  though  the  natural  con- 
sequences of  the  act  complained  of,  are  not  the  necessary 
result  of  it,  they  are  termed  special  damages^  which  the 
law  does  not  impl}^;  and  therefore,  in  order  to  prevent  a 
surprise  upon  the  defendant,  they  must  be  particularly 
specified  in  the  declaration,  or  the  plaintiff  will  not  be  per- 
mitted to  give  evidence  of  them  on  the  trial,  {y) 

Measure  of  damages. — Damages  are  given  as  a  com- 
pensation, recompense,  or  satisfaction  to  the  plaintiff,  for 
an  injury  actually  received  by  him  from  the  defendant. 
They  should  be  precisely  commensurate  with  the  injury ; 

(w)  I  Chit.  PI.  (II  Am.  ed.)  395. 

(*)  2  Gilm.  375 ;  3  Scam.  347 ;  Tidd,  (9  ed. )  896. 

iy)  2  Greenl.  Ev.,  sec  254;  i  Chit.  PI.  (11  Am.  ed.)  395,  396;  4  Bing. 
317;  2  East,  154;  5  Wend.  538,  539;  17  Pick.  78;  4  Gray,  333;  25  111.  86;  16 
111.  283. 


TRESPASS,  56: 


Damages — Joinder  of  counts  for  various  trespasses,  etc. 


neither  more  nor  less  ;  (^)   and  this  whether  for  an  injury 
to  his  person  or  estate,  {a) 

In  actions  of  trespass  for  taking  personal  propert3S  the 
measure  of  damages  is  in  general  the  value  of  the  property 
when  taken  ;  {b)  and  interest  may  be  allowed  from  the  time 
of  the  taking  until  the  trial,  [c) 

Vindictive  damages. — But  wherever  the  elements  of 
fraud,  malice,  gross  negligence,  or  oppression  mingle  in 
the  controversy,  the  law,  instead  of  adhering  to  the  rule  of 
exact  compensation,  adopts  a  wholly  different  rule.  It 
permits  the  jury  to  give  what  it  terms  punitory,  vindictive 
or  exemplary  damages  ;  in  other  words,  blends  together 
the  interest  of  society  and  of  the  aggrieved  individual,  and 
gives  damages  not  only  to  recompense  the  sufferer,  but  to 
punish  the  offender,  {d) 

In  actions  for  assaults,  etc.,  evidence  may  be  given  of 
the  pecuniary  condition  of  the  plaintiff  and  the  defend- 
ant, {e) 

yoiiidet-  of  counts. — In  an  action  of  trespass,  the  plaint- 
iff may  join  counts  for  trespass  to  land,  to  the  person,  and 
to  personal  property  ;  and  each  cause  showing  an  inde- 
pendent cause  of  action,  he  may  recover  upon  such  counts 
as  are  sustained  by  proof,  although  he  tails  as  to  the 
others.  {/) 

{z)  Greenl.  Ev.,  sec.  253;  Co.  Lit.  257,  a;  2  Bla.  Com.  43S;  7  Mass. 
256;  4  Dall.  207  ;  3  Am.  Jur.  257.     See.  37  III.  341 ;  20  111.  237. 

{a)  Id.    See  Sedw.  on  Dam.  39;  87  111.  125;   70  III.  251. 

(/')  20  111.  37  J  21  Mo.  289;  74  111.  242. 

(c)  22  111.  494;  37  III.  341. 

((/)  Sedgw.  Dam.  39;  3  Scam.  373;  2  Gilm.  432;  16  111.  2S3 ;  19  111.  631 ; 
20  111.  237;  28  111.  4S6;  30  111.  30;  S  N.  Y.  460;  19  N.  Y.  174;  36  N.  H.  9. 
See  6  Hill,  466;  iS  Miss.  71;  6  Tex.  266  S  Rich.  (S.  C.)  144;  4  Harr. 
321;  2  Cal.  54;  51  111.92.  But  see  2  Greenl.  Ev.,  sec.  253,  n.  2,  and  cases 
there  cited;  77  111.  280. 

(e)  16  111.  316; ;  2  Gilm.  432  ;  3  Scam.  372  ;   i  Jones'  Law  Cas.  9S. 

(/)  I  Chit.  PI.  (11  Am.  ed.)  201 ;  iS  111.  403;  19  Pick.  517;  6  Blackf.  187. 


566  TRESPASS. 

Declaration  for  an  assault,  etc. 

Ko.  250.     For  an  assaicli,  etc. — alleging  special  damage. 

In  the Court. 

Term,  18 — . 

State  of  Illinois,  )  > 

County  of ,       >  set.     A.  B.,  plaintiff,  by  E,  F.,  his 

attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of  tres- 
pass :  For  that  the  defendant,  on,  etc.,  with  force  and 
arms,  etc.,  in  the  county  aforesaid,  assaulted  the  plaintiff, 
and  then  and  there  violently  seized  and  laid  hold  of  him, 
and  pulled  and  tore  large  quantities  of  hair  from  and  off 
the  head  of  the  plaintiff,  and  then  and  there,  with  a  certain 
stick  and  with  his  fists,  gave  and  struck  the  plaintiff  a  great 
many  violent  blows  and  strokes  on  divers  parts  of  his  body  ; 
and  also  then  and  there,  with  great  force  and  violence, 
shook  and  pulled  about  the  plaintiff,  and  threw  him  down 
to  and  upon  the  ground,  and  violently  kicked  the  plaintiff, 
and  gave  and  struck  him  a  great  many  other  blows  and 
strokes ;  and  also  then  and  there,  with  great  force  and 
violence,  tore  and  damaged  the  clothes,  to  wit,  one  coat, 
one  waistcoat,  one  pair  of  trousers,  one  shirt  and  one  hat, 

of  the  plaintiff,  of  the  value  of dollars,  which  he  then 

and  there  wore  :  By  means  of  which  several  premises  the 
plaintiff  was  then  and  there  greatly  hurt,  bruised  and 
wounded,  and  became  and  was  sick,  sore,  lame  and  dis- 
ordered, and  so  remained  for  a  long  space  of  time,  to  wit, 
hitherto;  during  all  which  time  the  plaintiff  thereby  suf- 
fered great  pain,  and  was  hindered  and  prevented  from 
performing  and  transacting  iiis  affairs  and  business  by  him 
during  that  time  to  be  performed  and  transacted  ;  and  also 
thereby  the  plaintiff  was  obliged  to  and  did  necessarily  lay 

out  divers  sums  of  money,  amounting  to  dollars,  in 

and  aboul  endeavoring  to  be  healed  of  the  said  bruises, 
wounds,  sickness,  soreness,  lameness  and  disorder  so  by 
the  defendant  occasioned  as  aforesaid. 

{Second  count,  for  another  assault,  etc.)  And  also  for 
that  tiie  defendant,  on,  etc.,  with  force  and  arms,  etc.,  in 
the  county  aforesaid,  again  assaulted  the  plaintiff,  and  then 
and  there  again  (liere  set  forth  the  injuries,  and  the  conse- 
quent damage,  according  to  the  facts,  in  like  manner  as 
in  the  first  count). 

{Conclusion.)  And  other  wrongs  the  defendant  to  the 
plaintiff  then  and  there  did ;  to  the  great  damage  of  the 


TRESPASS.  567 


Declaration  for  an  assault,  etc. 


plaintiff,  and  against  the  peace  of  the  People  of  this  state. 
Wherefore  the  plaintitT  says  that  he  is  injured,  and  has  sus- 
tained damage  to  the  amount  of dollars,  and  therefore 

he  brings  his  suit,  etc. 

It  is  best  to  allege  only  such  acts  of  trespass  as  can  be 
proved ;  an  over-statement,  unsupported  by  evidence,  is 
detrimental,  and  affords  ground  for  ridicule  on  the  part 
of  the  defendant's  counsel.  The  allegations  should  con- 
form, as  nearly  as  ma}^  be,  to  the  facts  of  each  particular 
case. 

If  there  have  been  several  assaults,  at  different  times,  for 
which  the  plaintiff  intends  to  proceed,  there  should  be  a 
distinct  count  for  each  assault ;  but  otherwise  it  is  not  nec- 
essary, though  usual,  to  insert  a  count  (like  the  next  form) 
for  a  common  assault,  for  if  the  plaintiff  proves  any  part  of 
a  special  count  he  will  be  entitled  to  a  verdict  -pro  tanto^ 
though  he  fails  to  prove  the  residue.  { g^ 

Under  the  allegation  of  "other  wrongs"  {alia  cnortnia)^ 
damages  and  matters  which  naturally  arise  from  the  act 
complained  of,  or  can  not  with  decency  be  stated,  may  be 
given  in  evidence  in  aggravation  of  damages,  though  not 
specified  in  any  other  part  of  the  declaration.  Thus  in 
trespass  for  breaking  and  entering  a  house,  the  plaintiff 
may,  in  aggravation  of  damages,  give  in  evidence  the  de- 
bauching of  his  daughter,  or  the  battery  of  his  servants, 
under  the  general  allegation  of  alia  enormia,  (Ji)  and  yet 
this  matter  ma}^  be  alleged  specially  ;  but  he  can  not  under 
that  general  allegation  give  in  evidence  the  loss 'of  service, 
or  any  other  matter  which  would  of  itself  bear  an  action. 
Therefore  in  trespass  quare  clausum  /regit,  the  plaintiff 
would  not,  under  the  allegation  of  alia  enormia,  be  per- 
mitted to  give  evidence  of  the  defendant's  taking  away  a 
horse,  etc.  ;  and  in  the  other  cases,  the  evidence  is  allowed 


ig)  2  Chit.  PI.  85 1,  n. 

ih)  I  Chit.  PI.  (11  Am.  ed  )  397.      But  see  Peake  Ev.  S7  (3  ed.) ;  2  Phil. 
Ev.  134. 


568  TRESPASS. 


Declaration  for  a  common  assault — An  assault,  etc.,  with  pistol. 

to  be  giv^en,  not  as  a  substantive  ground  of  action,  but 
merely  to  show  the  violence  of  the  defendant's  conduct, 
and  give  a  character  to  the  case.  (/) 

No.  251.     For  a  coninion  assault. 

{Commence  as  in  last  precedent.)  For  that  the  defend- 
ant, on,  etc.,  \v\Xh.  force  and  arms,  etc.,  in  the  county  afore- 
said, made  an  assault  on  the  plaintiff,  and  then  and  there 
beat,  bruised,  wounded  and  ill-treited  him ;  and  other 
wrongs  to  the  plaintiff  then  and  there  did  ;  against  the 
peace  of  the  People  of  this  state,  and  to  the  damage  of  the 

plaintiff  of dollars,  and  therefore  he  brings  his  suit, 

etc. 

]Vo.  252.    For  an  assault  xuith  a  -pistol,  and  zvounding,  etc. 

{Comiuence  as  in  ]Vo.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county  afore- 
said, made  an  assault  upon  the  plaintiff,  and  shot  off  a  cer- 
tain pistol,  then  and  there  loaded  with  gunpowder  and 
leaden  bullets,  at  and  against  the  plaintiff,  and  thereby  then 
and  there  shot  and  wounded  the  plaintiff  in  so  grievous  a 
manner  that  his  life  was  despaired  of;  and  b}^  reason  of 
such  shooting  and  wounding  the  plaintiff  then  and  there 
became  lame,  sick  and  disordered,  and  so  continued  for  a 
long  time,  to  wit,  from  thence  hitherto,  and  was  during  all 
that  time  thereby  rendered  incapable  of  following  and 
transacting  his  affairs  and  business  b}'  him  during  that  time 
to  be  done;  and  also  thereby  the  plaintiff  was  obliged  to 
and  did  necessarily  lay  out  divers  sums  of  money,  amount- 
ing to dollars,  in  and  about  endeavoring  to  be  cured 

of  the  wounds,  sickness,  lameness  and  disorder  aforesaid, 
occasioned  as  aforesaid ;  and  other  wrongs  the  defendant 
to  the  plaintiff  then  and  there  did  ;  against  the  peace  of  the 
People  of  this  state,  and  to  the  damage  of  the  plaintilT  ot 
dollars,  and  therefore  he  brings  his  suit,  etc. 

A  count  for  a  common  assault  may  be  inserted,  if  deemed 
expedient,  concluding  the  declaration  as  in  No.  250,  ante. 

(zj  I  Cba.  ri.  (II  Am.  ed.)  398;  17  Bradw.  326. 


TRESPASS.  569 


Riding,  etc.,  against  plaintiff — Husband  and  wife  v.  hu.band  and  wife. 

No.   253.     For  riding  or  driving  against  the  plaintiff. 

(  Commence  as  in  No.  250,  ante.)  P'or  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county 
aforesaid,  assauhed  the  plaintiff,  and  with  great  force  and 
violence  rode  {drove)  a  certain  horse  {drazving  a  certain 
carriage)  against,  upon  and  over  the  plaintiff,  and  then  and 
there,  with  the  said  horse  {and  carriage) .,  violently  knocked 
and  threw  the  plaintiff  down  to  and  upon  the  ground  there, 
and  grievously  hurt,  bruised  and  wounded  him,  {any  par- 
ticular serious  injury  may  be  here  alleged^)  and  tore  and 
damaged  the  clothes,  to  wit,  one  coat,  one  waistcoat,  one 
pair  of  trousers,  one  shirt  and  one  hat,  of  the  plaintiff,  of 

the  value  of dollars,  which  he  then  and  there  wore  ; 

and  by  reason  of  such  hurling,  wounding  and  bruising,  the 
plaintiff  then  and  there  became  [proceed  in  like  manner  as 
in  the  last  precedent,  to  the  end. — See  No.  250,  ante.) 

No.  254.  JBy  husband  ana  xuife  against  husband  and 
ivife.,  for  a  battery  of  one  wife  by  the  other.  [2  Chit. 
PI.  854.] 

{Title  of  court.,  etc.)  A.  B.  and  C.  D.,  his  wife,  com- 
plain of  E.  F.  and  G.  H.,  his  wile,  of  a  plea  of  trespass  ; 
for  that  the  said  G.  H.,  on,  etc.,  with  force  and  arms,  etc., 
assaulted  the  said  C.  D.,  then  and  still  being  the  wife  of 
the  said  A.  B.,  to  wit,  at,  etc.,  and  then  and  there  beat, 
bruised.,  zvounded  and  ill-treated  her,  so  that  her  life  was 
then  and  there  greatly  despaired  of;  and  other  wrongs  to 
the  said  C.  D.  then  and  there  did ;  against  the  peace,  etc., 
and  to  the  damage  of  the  said  A.  B.  and  C.  D.,  his  wife, 
of dollars,  and  therefore  they  bring  their  suit,  etc. 

The  acts  of  trespass  are  to  be  described  according  to  the 
facts.  Care  must  be  taken  to  declare  only  for  the  personal 
injury  and  suffering  of  the  wife,  and  not  to  include  any  al- 
legation of  an  injury  which,  in  point  of  law,  onl}^  affected 
the  husband,  and  not  the  wife.  In  Illinois,  the  husband 
need  not  join  as  plaintiff  in  an  action  for  a  personal  injury 
to  the  wife,  {j) 

{J)  52  111.  260;  Rev.  S'-at.  (1877)  552;  77  ill.  346;  75  111.  566. 


570  TRESPASS. 


False  imprisonment — Assault  and  false  imprisonment. 

ISfo.  255.      Common  co2int  for  a  fahc  hnpn'sonmcni. 

{Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county 
aforesaid,  made  an  assault  upon  the  plaintiff,  and  beat, 
bruised  and  ill-treated  him,  and  then  and  there  imprisoned 
him,  and  detained  him  in  prison  there,  without  any  reason- 
able  or  probable  cause  whatsoever,  for  the  space  of 

hours  tlien  next  following,  contrary  to  the  laws  of  this  state, 
and  against  the  will  of  the  plaintiff;  and  other  wrongs  to 
the  plaintiff  then  and  there  did  ;  against  tlie  peace  of  the 
People  of  this  state,  and  to  the  damage  of  the  plaintiff  of 
dollars,  and  therefore  he  brings  his  suit,  etc. 

JVo.  256.     For  an  assault,  etc.,  and  false  Imprisonment. 

{Commence  as  in  JSfo.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county 
aforesaid,  assaulted  the  plaintiff,  and  seized  and  laid  hold 
of  him,  and  with  great  violence  pulled  and  dragged  him 
about,  and  gave  and  struck  the  plaintiff  a  great  many 
violent  blows  and  strokes  ;  and  also  then  and  there  forced 
the  plaintiff  to  go  from  and  out  of  a  certain  dwell  in gr-hoiise, 

in  the  cit}"  of ,  in  the  county  aforesaid,  into  the  public 

street  there,  and  compelled  him  to  go  in  and  along  divers 
public  streets,  to  a  certain  police-office  in  the  said  city  ;  and 
also  then  and  there  imprisoned  the  plaintiff,  and  detained 
him  in  prison  there,  without  any  reasonable  or  probable 

cause  whatsoever,  for  the  space  of then  next 

following,  contrary  to  the  laws  of  this  state,  and  against 
the  will  of  the  plaintiff;  whereby  the  plaintiff  was  then  and 
there  not  only  greatly  hurt,  bruised  and  wounded,  but  was 
exposed  to  public  disgrace,  and  injured  in  his  credit  and 
circumstances  ;  and  other  wrongs  the  defendant  to  him,  the 
plaintiff,  then  and  there  did ;  against  the  peace  of  the 
People  of  this  state,  and  to  the  damage  of  the  plaintiff  of 
dollars,  and  therefore  he  brings  his  suit,  etc.  {k) 

If  deemed  expedient,  the  common  count  for  a  false  im- 
prisonment, and  a  count  for  a  common  assault,  may  be 
inserted,  concluding  the  declaration  as  in  No.  250,  ante. 


(Ji)  See  25  111.  70 ;  27  111.  467 ;  41  111.  126 ;  54  111.  431. 


TRESPASS.  571 


Debauching  plaintiff's  daughter,  etc — Criminal  conversation. 

In  order  to  sustain  an  action  for  a  false  imprisonment,  it 
is  not  necessary  for  the  plaintiff  to  show  that  the  defendant 
used  violence,  or  laid  hands  on  him,  or  shut  him  up  in  any 
jail  or  prison,  but  it  is  sufficient  to  show  that  the  defendant 
in  any  manner  unlawfully  restrained  the  plaintiff  of  his 
liberty,  or  detained  him  from  going  where  he  wished.  (/) 

One  who  has  counselled,  advised  or  procured  the  false 
imprisonment  of  another,  is  liable  as  a  principal,  although 
he  did  not  participate  actively  in  the  commission  of  the 
act.  (vi) 

No.  257.     For  debauching  the  flai7itiff''s  daughter  and 

servant, 

[Cofnmence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county 
aforesaid,  assaulted,  debauched  and  carnally  knew  one  E. 
B.,  then  and  from  thence  hitherto  being  the  daughter  and 
servant  of  the  plaintiff;  whereby  the  said  E.  B.  became 
pregnant  and  sick  with  child,  {-proceed  as  in  the  form  in 
case,  No.  209,  ante,  and  conclude :^  And  other  wrongs 
the  defendant  to  the  plaintiff  then  and  there  did ;  against 
the  peace  of  the  People  of  this  state,  and  to  the  damage  of 

the   plaintiff  of  dollars,  and  tlierefore  he  brings  his 

suit,  etc. 

See  the  form  No.  209,  ante^  and  the  observations  there- 
under. 

The  first  count  maybe  for  trespass  in  entering  the  plaint- 
tiff's  dwelling-house,  and  there  debauching  his  daughter, 
with  a  second  count  as  above.  (;/) 

No.  258.     For  criminal  conversation. 

{Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  and  on  divers  other  days  between  that  day 
and  the  day  of  commencing  this  suit,  with  force  and  arms, 
etc.,  in  the  county  aforesaid,  assaulted  and  ill-treated  E.  B., 

(»■ )  33  111.  473.    See  Bac.  Abr.  Tres.  D.  3 ;  2  Bouv.  Inst.  5S9 ;  i  Chit.  Prac. 

47,  4S;  77  il^-  103- 
\m)  41  111.  314. 

(«)  2  Chit.  PI.  856,  n. 


.  572  TRESPASS. 

Declaration  for  taking  goods,  etc. — Chasing  cattle,  etc. 

then  and  still  being  the  wife  of  the  plaintiff,  and  then  and 
there  debauched  and  carnally  knew  her ;  whereby  the 
plaintiff,  from  the  day  first  aforesaid  hitherto,  has  lost  and 
been  deprived  of  the  comfort,  fellowship  and  aid  of  his  said 
wife,  which  he  ought  to  have  had,  and  otherwise  might 
and  would  have  had,  in  his  domestic  affairs ;  and  other 
wrongs  the  defendant  to  the  plaintiff  then  and  there  did  ; 
against  the  peace  of  the  People  of  this  state,  and  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc. 

See  the  form  No.  208,  ante,  and  the  observations  there- 
under. 

JSfo.  259.      For  taking  goods — Common  count  de  bonis 

ASPORTATIS. 

(  Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county  afore- 
said, seized,  took  and  carried  {or  "  drove,"  or  "led  ")  away 
the  goods  and  chattels,  to  wit,  {Jiere  describe  the  -property,) 

of  the  plaintiff,  of  the  value  of dollars,  and  converted 

and  disposed  of  the  same  to  his  own  use  ;  and  other  wrongs 
to  the  plaintiff  then  and  there  did  ;  against  the  peace  of  the 
People  of  this  state,  and  to  the  damage  of  the  plaintiff  of 
dollars,  and  therefore  he  brings  his  suit,  etc. 

As  to  the  description  of  the  propert}^  and  the  allegation 
of  the  value,  and  of  the  plaintiff's  right  or  interest,  see  the 
observations  under  the  head  of   "The  Declaration,"  ante. 

No.  260.     For  chasing  cattle — alleging  special  damage. 

{Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  and  on  divers  other  days  between  that  day 
and  the  commencement  of  this  suit,  with  force  and  arms, 
etc.,  drove,  chased  and  hurried  the  cows,  oxen,  and  calves, 
to  wit, cows, oxen,  and calves,  of  the  plaint- 
iff, of' the  value  of  dollars,  then  depasturing  and  be- 
ing in  and  upon  a  certain  waste  or  common  in  the  county 
aforesaid,  and  then  and  there  chased  and  drove  the  said 
cows,  oxen  and  calves  from  and  off  the  said  common,  to 
divers  places  to  the  plaintiff  unknown  ;  whereby  the  plaint- 


TRESPASS.  573 


Declaration  for  chasing  mare — For  injuries  to  carriage,  etc. 

iff  was  not  onl}'-  put  to  great  trouble,  and  to  great  expense, 

amounting  in  the  whole  to  the  sum  of dollars,  in  and 

about  endeavoring  to  find  his  said  cows,  oxen  and  calves, 

but  also  divers  thereof,  to  wit,  cows,  oxen  and 

calves,  of  the  value  of dollars,  then  and  there 

died ;  and  others  thereof,  to  wit, cows,  oxen  and 

calves,  of  the  value  of dollars,  then  and  there 

became  and  were  wholl}'  lost  to  the  plaintiff;  and  the  resi- 
due of  the  said  cows,  oxen  and  calves  then  and  there  became 
and  were  greatly  damaged  and  lessened  in  value ;  and 
other  wrongs  the  defendant  to  the  plaintiff  then  and  there 
did  ;  against  the  peace  of  the  People  of  this  state,  and  to  the 

damage  of  the  plaintiff  of dollars,  and  therefore  he 

brings  his  suit,  etc.  (o) 

A'^o.  261.      J^or  chasing  a  mare.,  whereby  she  dropped  a 

dead  foal. 

{Commence  as  in  JVo.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county  afore- 
said, drove  and  chased  a  certain  mare  of  the  plaintiff,  of 

the  value  of dollars,  whereby  the  said  mare  then  and 

there  slipped  and  dropped  a  dead  foal ;  by  means  whereof 
the  said  mare  was  then  and  there  greatly  hurt  and  dam- 
aged, and  the  plaintiff  was  deprived  of  the  use  of  the  said 

mare  for  the  space  of weeks  then  next  following';  and 

the  defendant  other  wrongs  to  the  plaintiff  then  and  there 
did  ;  against  the  peace  of  the  People  of  this  state,  and  to 

the  damage  of  the  plaintiff  of dollars,  and  therefore 

he  brings  his  suit,  etc. 

-A'V?.  262.  J^or  driving  a  carriage  against  the  plaint- 
iff's, whereby  he  -was  throivn  oid^and  his  carriage  dajii- 
aged,  etc. 

{Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  count}-  afore- 
said, drove  a  certain  carriage  with  great  force  and  violence 
against  a  certain  carriage  of  the  plaindff,  of  the  value  of 

dollars,  in  which  last-mentioned  carriage  the  plaintiff' 

was  then  and  there  riding  in  and  along  the  highway  there, 
and  thereby  then  and  there  greatly  broke,  damaged  and 

(£>)  2  Chit.  PI.  858. 


574  TRESPASS. 


Declaration  for  killins:  horse. 


spoiled  the  said  carriage  of  the  plaintiff;  and  by  means  of 
the  premises  the  plaintiff  was  then  and  there  thrown  with 
great  violence  out  of  his  said  carriage  to  and  upon  the 
ground  ;  and  also  by  means  of  the  premises  the  plaintiff  was 
thereupon  obliged  to  expend,  and  did  expend,  the  sum  of 

dollars,  in  repairing  his  said  carriage  ;  and  also  by 

means  of  the  premises  the  plaintiff  was  then  and  there 
greatly  bruised,  hurt,  wounded  and  disordered,  and  so  con- 
tinued for  the  space  of  days  then  next  following,  and 

during  all  that  time  was  prevented  from  transacting  his 
business  by  him  during  the  said  time  to  be  transacted,  and 
was  also  thereby  obliged  to  expend,  and  did  expend,  divers 

sums  of  money,  amounting  to dollars,  in  the  cure  of 

his  said  bruises,  hurts,  wounds  and  disorder,  occasioned  as 
aforesaid  ;  and  the  defendant  other  wrongs  to  the  plaintiff 
then  and  there  did ;  against  the  peace  of  the  People  of  this 

state,  and  to  the  damage  of  the  plaintiff  of dollars, 

and  therefore  he  brings  his  suit,  etc. 

By  statute  in  Illinois,  the  owner  "of  any  carriage  inin- 
ning  upon  any  turnpike-road  or  public  highway,  for  the 
conveyance  of  passengers,"  is  liable,  in  an  action  of  tres- 
pass, for  any  injury  or  damage  occasioned  by  the  wilful 
act  of  the  driver.  (_^) 

No.  263.     Fo7'  killing  plaintiff's  horse. 

{Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  in  the  county  afore- 
said, beat,  bruised,  wounded  and  ill-treated  a  certain  geld- 
ing of  the  plaintiff,  of  the  value  of dollars,  so  that 

the  said  gelding  languished  of  the  said  bruises  and  wounds 

then  and  there  given,  for  the  space  of days  then  next 

lollowing,  during  which  time  the  plaintiff  was  thereby 
obliged  to  and  did  lay  out  divers  sums  of  money,  amount- 
ing to dollars,  in  endeavoring  to  cure  the  said  gelding  ; 

and  afterwards,  to  wit,  on,  etc.,  by  reason  of  the  said  bruises 
and  wounds,  the  said  gelding  there  died  ;  and  other  wrongs 
the  defendant  to  the  plaintiff  then  and  there  did  ;  against  the 
peace  of  the  People  of  this  state,  and  to  the  damage  of  the 
plaintiff  of dollars,  and  therefore  he  brings  his  suit,  etc. 

{f)  Gross'  Stat.  2S6;  13  111.  277.     See  5  Gilm.  425. 


TRESPASS.  575 


Declaration  against  constable,  on  the  statute,  etc. 

No.  264.    Against  a  constable,  on  the  statute,  {-f)  for  treble 
valtic^  for  taking  exempted  property  in  execution. 

{Commence  as  in  No.  250,  ante.)  For  that  before  and 
at  the  time  of  the  issuing  of  the  writ  hereinafter  mentioned, 
and  from  thence  until  and  at  the  time  of  the  committing  of 
the  grievances  by  the  defendant  as  hereinafter  mentioned, 
the  plaintiff  was  the  head  of  a  family,  and  residing  with  the 
same,  and  at  the  time  last  mentioned  was  the  owner  of  two 
horses,  worth  not  exceeding  two  hundred  and  fifty  dollars, 

that  is  to  sajs  of  the  value  of dollars,  and  was  not  the 

owner  of  any  other  horses,  or  of  any  oxen,  to  wit,  in  the 
county  aforesaid ;  by  reason  whereof,  and  by  force  of  the 
statute  in  such  case  made  and  provided,  the  said  horses  of 
the  plaintiff  were  then  and  there  exempt  from  execution  : 
And  on,  etc.,  the  defendant,  then  being  one  of  the  consta- 
bles in  and  for  the  county  aforesaid,  not  regarding  the  said 
statute,  with  force  and  arms,  etc.,  there  took  and  seized  the 
said  horses  of  the  plaintiff,  by  virtue  of  a  certain  writ  of 
execution  before  that  time,  to  wit,  on,  etc.,  sued  forth 
against  the  goods  and  chattels  of  the  plaintiff  by  one  J.  K., 
before  one  L.  M.,  then  one  of  the  justices  of  the  peace  in 
and  for  the  county  aforesaid  ;  which  said  writ  was  not  issued 
in  any  action  to  recover  the  purchase-money  for  the  said 
horses  :  Against  the  peace  of  the  People  of  this  state,  and 
to  the  great  damage  of  the  plaintiff,  and  against  the  form 
of  the  statute  aforesaid,  {q) 

{Second  count,  at  common  law,  for  taking  chattels.') 
And  also  for  that  the  defendant,  on,  etc.,  with  force  and 
arms,  etc.,  in  the  county  aforesaid,  seized,  took,  drove  and 
led  away  other  the  goods  and  chattels,  to  wit,  two  other 

horses,  of  the  plaintiff,  of  the  value  of  dollars,  and 

converted  and  disposed  of  the  same  to  his  own  use  ;  and 
other  wrongs  to  the  plaintiff  then  and  there  did ;  to  the 
great  damage  of  the  plaintiff,  and  against  the  peace  of  the 
People  of  this  state. 

{Conclusion.)     Wherefore  the   plaintiff  says  that  he  is 

injured,  and  has  sustained  damage  to  the  amount  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

(/)  Rev.  Stat.  (1877)  485.     See  88  111  402. 
{q)   See  I  Gilm,  333 ;   Id.  30. 


576  TRESPASS. 


Declaration  for  breaking  and  entering  house,  etc. 

If  the  plaintiff  declares  in  the  common  form  of  a  decla- 
ration in  trespass,  without  any  reference  to  the  statute,  he 
can  only  recover  simple  damages  for  t  he  trespass.  If  he 
desires  to  claim  the  penalt}',  he  should  declare  specially 
on  the  statute,  (r) 

No.  265.     For  trespass  in  dwelling-house.,  hj'cahing  open 
doors,  and  seizing  goods  therein. 

[Commence  as  in  A''o.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  broke  and  entered 
a  certain  dwelling-house  of  the  plaintiff,  situate  in  the 
county  aforesaid,  and  made  a  great  noise  and  disturbance 
in  the  said  dwelling-house,  and  stayed  and  continued 
therein,  making  such  noise  and  disturbance,  for  the  space 

of days  then  next  following,  and  then  and  there  forced 

and  broke  open,  broke  to  pieces  and  damaged doors 

of  the  plaintiff',  belonging  to  the  said  dwelling-house,  with 
the    appurtenances,    and  broke   to    pieces,    damaged    and 

spoiled  locks,  staples  and hinges,  of  and 

belonging  to  the  said  doors  respectively,  and  wherewith 

the  same  were  then  fastened,  of  the  value  of dollars  ; 

and  also,  during  the  time  aforesaid,  to  wit,  on,  etc.,  with 
force  and  arms,  etc.,  seized  and  took  divers  goods  and 
chattels,  to  wit,  {describe  the  goods,)  of  the  plaintiff,  then 
found  and  being  in  the  said  dwelling-house,  and  being  of 

the  value  of dollars,  and  carried  awa}'  the  same,  and 

converted  and  disposed  thereof  to  his  own  use,  to  wit,  in 
the  county  aforesaid ;  by  means  of  which  several  premises 
the  plaintiff  and  his  family  were,  during  all  the  time  afore- 
said, not  only  greatly  annoyed  and  disturbed  m  the  peace- 
able possession  of  his  said  dwelHng-house,  but  also  the 
plaintitYwas  during  all  that  time  hindered  and  prevented 
from  carrying  on  and  transacdng  therein  his  necessary 
affairs  and  business.  {A  count  may  be  added  for  an  ex- 
pulsion, as  belozu,  if  applicable  to  the  facts,  and  also  a 
count  de  bonis  asportalis,  for  zvhich  see  No.  259,  ante — 
concluding  the  declaration  as  in  No.  250,  ante.) 

The  above  declaration  in  substance  charges  the  defend- 
er) I  Gilm.  30.     See  5  Cal.  239. 


TRESPASS.  577 

Count  for  common  expulsion — Declaration  for  trespass  to  land,  etc. 

ant  with  breaking  open  an  outer  door,  and  if  he  pleads  a 
justification,  it  must  be  framed  accordingly,  (s) 

]Sfo.  266.      Count  for  a  common  expulsion. 

And  also  for  that  the  defendant,  on,  etc.,  with  force  and 
arms,  etc.,  broke  and  entered  a  certain  other  dwelling- 
house  of  the  plaintiff,  situate  in  the  county  aforesaid,  and 
then  and  there  expelled  and  amoved  the  plaintiff  and  his 
family  from  the  possession,  use,  occupation  and  enjoyment 
of  the  last-mentioned  dwelling-house,  and  kept  and  con- 
tinued them  so  expelled  and  amoved  for  a  long  space  of 
time,  to  wit,  from  thence  hitherto  ;  whereby  the  plaintiff, 
during  all  that  time,  lost  and  was  deprived  of  the  use  and 
benefit  of  his  last-mentioned  dvvellincr-house. 

o 

No.  267.     For  trespass  to  land — entering  close ^  breaking 
oj)cn  gates,  destroying  crops,  etc. 

[Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  and  on  divers  other  days  between  that  day 
and  the  commencement  of  this  suit,  with  force  and  arms, 
etc.,  broke  and  entered  a  certain  close  of  the  plaintiff,  sit- 
uate in  the  county  aforesaid,  and  then  and  there  forced  and 

broke  open,  broke  to  pieces,  damaged   and  spoiled 

gates  of  the  plaintiff,   of  the  value  of  dollars,   then 

standing  and  being  in  the  said  close,  and  — —  locks,  

staples  and  hinges  of  the  plaintiff,  of  the  value  of 

dollars,  respectively  aflixed  to  the   said  gates,    and 

with  which  the  same  were  then  respectively  locked  and 
fastened ;  and  with  feet  in  walking  trod  down  and  spoiled 
the  grass  and  corn  of  the  plaintiff,  of  the  value  of dol- 
lars, then  and  there  growing  and  being ;  and  with  horses, 
cows,  oxen  and  sheep,  depastured  and  consumed  the  grass 

and  corn  of  the  plaintiff,  of  the  value  of dollars,  then 

growing  and  being  in  the  said  close  ;  and  with  divers  other 
horses,  cows,  oxen  and  sheep,  and  also  with  the  wheels  of 
divers  carts,  wagons  and  other  carriages,  crushed,  dam- 
aged and  spoiled  other  the  grass  and  corn  of  the  plaintill", 

of  the  value  of  dollars,  then  and  there  also  growing 

and  being;  and  with  the  feet  of  the  said  horses,  and  with 

{s)  2  Chit.  Pi.  S64,  n.;  II  Moore,  40. 

37 


578  TRESPASS. 


Declaration  for  trespass  to  land,  etc. 


the  wheels  of  the  said  carts,  wagons  and  other  carnages,  tore 
up,  damaged  and  spoiled  the  earth  and  soil  of  the  said  close  ; 
and  also  then  and  there  mowed  and  cut  down  the  grass  and 
corn  of  the  plaintiff,  then  growing  in  the  said  close,  and 

seized,  took  and  carried  away wagon-loads  of  hay  and 

wagon-loads  of  corn  of  the  plaintiff,  of  the  value  of 

dollars,  off  and  from  the  said  close,  and  converted  and  dis- 
posed of  the  same  to  his  own  use  ;  and  also  then  and  there  cut 

down- and  destroyed oaks, ash  trees, elms, 

etc.,  {according  to  the  fact^  and other  trees,  and 

acres  of  underwood,  of  the  plaintiff,  of  the  value  of dol- 
lars ;  and  the  timber,  wood,  branches  and  bushes  thereof 

coming  afld  arising,  to  wit, wagon-loads  of  timber, 

wagon-loads  of  wood, wagon-loads  of  branches  and 

wagon-loads  of  bushes,  of  the  plaintiff,  of  the  value  of 

dollars,  took  and  carried  away,  and  converted  and  dis- 
posed of  the  same  to  his  own  use ;  and  also  then  and  there 
placed  and  erected,  and  caused  to  be  placed  and  erected, 
divers  sheds  and  stables  in  and  upon  the  said  close,  and 
kept  and  continued  the  said  sheds  and  stables,  so  there 
placed  and  erected,  without  the  leave  or  license,  and  against 
the  will,  of  the  plaintiff,  from,  etc.,  hitherto;  and  thereby 
and  therewith,  during  all  the  time  aforesaid,  greatly  in- 
cumbered the  said  close,  and  hindered  and  prevented  the 
plaintiff  from  having  the  use,  benefit  and  enjoyment  thereof 
in  so  large  and  ample  a  manner  as  he  might  and  otherwise 
would  have  done.     {Sec  note  at  end  of  N'o.  265,  ante.) 

A  declaration  in  trespass  qaare  clatisiini  f regit  must  set 
forth  a  trespass  committed  to  real  property  in  the  county 
where  the  action  is  brought.  It  is  sufficient  to  describe  the 
close  or  house  generally,  as  in  the  above  precedents  ;  (/) 
but  if  the  description  is  general,  and  the  defendant  pleads 
Ubcruni  tenenientum,  the  plaintiff  must  make  a  new  assign- 
ment ;  and  to  avoid  this  necessity  it  may  sometimes  be  ad- 
visable to  give  a  precise  description  of  the  property  in  the 
declaration.  When  this  is  done,  care  should  be  taken  to 
avoid  an}''  mistake  in  the  description.  {tC) 

{f)  2  Chit.  PI.  S63,  n. 

(a)  01.  Prec.  564;  2  Chit.  PI.  S6S. 


TRESPASS.  579 


Cutting  down  trees,  etc. — Digging  mines,  etc. 


No.  268.     For  cutting  down  and  carrying  away  trees,  etc. 

{^Commence  as  in  No.  250,  ante,)  For  that  the  defend- 
ant, on,  etc.,  and  on  divers  other  days  and  times  between 
that  day  and  the  commencement  of  this  suit,  with  force  and 
arms,  etc.,  in  the  county  aforesaid,  felled,  cut  and  de- 
stroyed the  trees  and  saplings,  to  wit, oaks,  ash 

trees, elms, other  trees,  and saplings,  of  the 

plaintiff,  of  the  value  of dollars,  then  growing  and  be- 
ing in  and  upon  certain  lands  there  situate,  and  took  and 
carried  away  the  said  trees  and  saplings,  and  converted 
and  disposed  of  the  same  to  his  own  use  ;  and  other  wrong 
to  the  plaintiff  then  and  there  did  ;  against  the  peace  of  the 
People  of  this  state,  and  to  the  damage  of  the  plaintiff 
of dollars,  and  therefore  he  brings  his  suit,  etc. 

A  count  may  be  inserted  lor  carrying  away  trees  gener- 
ally. The  above  count — not  alleging  any  trespass  on  the 
close — is  proper  where  the  land  has  been  demised,  and  the 
trees  were  excepted  in  the  lease. 

Possession  of  a  farm  draws  with  it  possession  of  the  ad- 
joining woodland,  though  uninclosed.  (^') 

No.   269.      For  digging  in    a   coal-mine,  and  carrying 
azvay  coal  therefrom. 

{^Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  broke  and  entered 
a  certain  coal-mine  or  vein  of  coal  of  the  plaintiff,  situate, 
etc.,  and  dug  out  of  the   said  coal-mine  or  vein  of  coal 

divers  large  quantites  of  coal,  to  wit,  tons  of  coal,  of 

the  plaintiff,  of  the  value   of  dollars,  and  took  and 

carried  away  the  same,  and  converted  and  disposed  of  the 
same  to  his  own  use.  {^Conclude  as  in  the  last  precedent ; 
or  a  count  de  bonis  asportatis  may  be  added,  with  conclusion 
as  in  No.  250,  ante.) 

No.  270.     For  digging  mines,   raising  ore,   and  taking 
and  converting  it. 

{Commence  as  in  No.  250,  ante.)  For  that  the  defend- 
ant, on,  etc.,  with  force  and  arms,  etc.,  broke  and  entered 

{v)  2  Rawle,  14;  i  Wend.  456. 


58o  TRESPASS, 


Defenses  to  the  action — Pleas  in  bar. 


the  close  of  the  plaintiff,  in  the  county  aforesaid,  and  then 
and  there,  with  shovels,  pick-axes,  and  other  instruments, 

dug  up,  turned  and  subverted  the  earth  and  soil,  to  wit, 

acres  of  earth  and  soil,  of  the  said  close  of  the  plaintiff; 
and  then  and  there  dug,  made  and  sank  divers  mines,  pits, 

shafts  and  holes,  to  wit,  mines, pits, shafts 

and  holes,  of  great  breadth  and  depth,  to  wit,  each 

of  the  breadth  of feet,  and  of  the  depth  of feet, 

in  the  said  close  of  the  plaintiff  there  ;  and  from  and  out 
of  the  said  mines,  pits,  shafts  and  holes,  then  and  there 
raised,  dug  and  got  divers  large  quantities  of  earth,  soil, 
stones,  lead  ore,  copper  ore,  and  other  ore  of  the  plaintiff, 

to  wit,  etc.,  of  the  value  of dollars  ;  and  the  same  so 

raised,  dug  and  got,  did  then  and  there  seize,  take,  carry 
awa3',and  convert  to  his  own  use.  (See  note  at  end  of  last 
-precedent.) 

DEFENSES    TO    THE    ACTION. 

For  pleas  in  abatement,  and  observations  thereon,  etc., 
see  Assumpsit,  ante. 

Pleas  in  bar. — In  trespass,  the  general  issue  is  "not 
guilty."  On  this  issue  the  plaintiff  must  prove,  ist,  that 
the  [>i-operty  was  actually  or  constructively  in  his  possession 
at  the  time  of  the  injury,  and  this  rightfully,  as  against  the 
defendant ;  and  2dly,  that  the  injury  was  committed  by 
the  defendant  w^th  force  ;  {w)  and  the  defendant  may  give 
in  evidence  any  matter  tending  to  disprove  either  of  these 
propositions.  \x)  Every  defense  which  admits  the  defend- 
ant to  have  been  ■prima  facie  a  trespasser,  must  be  specially 
pleaded  ;  but  any  matters  which  go  to  show  that  he  never 
did  the  acts  complained  of,  may  be  given  in  evidence  under 
the  general  issue.  Thus,  for  exampl.e,  under  this  issue  it 
may  be  proved  that  the  plaintiff  has  no  property  in  the 
goods  ;  or  that  the  defendant  did  not  take  them  ;  or  that  he 

(w)  2  Greenl.  Ev.,  sec.  613. 

(«)  2  Greenl.  Ev.,  sec.  635;  i  Chit.  PI.  (11  Am.  ed.)  500. 


TRESPx\SS.  5S1 


Defenses  to  the  action — Pleas  in  bar. 


did  not  enter  the  plaintiff's  close,  (y)  But  if  he  acted  by 
license,  even  from  the  plaintiff,  without  claiming  title  in 
himself;  (z)  or  if  he  would  justify  under  a  custom  to  en- 
ter;  (a)  or  under  a  right  of  way  ;  (6)  or  if  the  injur}^  was 
occasioned  by  the  plaintiff's  own  negligence,  or  was  done  bv 
the  defendant  from  any  other  cause,  short  of  such  extraneous 
force  as  deprived  him  of  all  agency  in  the  act;  it  can  not  be 
shown  under  this  issue,  but  must  be  specially  pleaded,  (c) 

All  matters  in  discharge  or  justification  must  be  speciall}' 
pleaded,  (d)  Thus  a  former  recover}-,  (e)  accord  and  sat- 
isfaction, (y)  the  statute  of  limitations,  (g-)  or  a  license,  {/i) 
must  be  specially  pleaded.  So  an  ofEcer  wishing  to  justify 
under  legal  process  must  plead  it  specially.  (2)  But  where, 
in  trespass  for  taking  goods,  the  defense  is  that  the  goods 
were  seized  by  the  defendant  as  an  officer,  by  virtue  of 
legal  process  against  a  third  -person,  and  that  the  goods 
belonged  to  such  third  person,  it  seems  to  be  unnecessary 
to  plead  such  defense  specially,  {j)  as  it  amounts  only  to  a 
denial  of  the  plaintiff's  right. 

Matters  in  mitigation  of  the  wrong  and  damages  may  be 
given  in   evidence   under  the  general  issue.  {JS)     And  it 

{y)  2  Greenl.  Ev.,  sec.  625;  i  Chit.  PI.  (ir  Am.  ed.)  500,  501;  2  Hill, 
on  Torts,  Si- 

(z)  2  Camp.  378;  I  Peake,  67;  24  Pick.  1S7;  26  Vt.  17S;  2  Rich.  93;  2 
Hill,  on  Torts,  81-83. 

(a)  4  Pick.  145. 

((5)  But  see  7  Mass.  3S5. 

(c)  2  Greenl.  Ev.,  sec.  625;  i  Chit.  PI.  (11  Am.  ed.)  501 ;  2  Ca'mp.  qoo. 

(d)  Id.;  12  111.  80;  31  Vt.  433;  19  N.  H.  562;  3  Hurl.  &  Nor.  276;  32 
Barb.  293. 

(«)  I  Chit.  PI.  (II  Am.  ed.)  506,501;  12  111.  8o;  i  Blackf.  169;  6  Cow.  691. 

(/)  I  Chit.  PI.  (11  Am.  ed.)  506.     Sec  2  Gilm.  252. 

(g-)  I  Chit.  PI.  (11  Am.  ed.)  506.     See  23  111.  399. 

(A)  I  Chit.  PI.  (11  Am.  ed.)  491,  502,  505;  7  Blackf.  373;  7  Term,  166;  2 
Taunt.  156;  24  Pipk.  1S7.     See  18  111.  261. 

(/)  I  Chit.  PI.  (II  Am.  ed.)  501,  506,  534.  See  i  Gilm.  401  ;  11  III.  610; 
13  111-  22,  602;  35  111.  417;  43  111.  337;  Hurl.  &  Nor.  276. 

(./)  4  Scam.  411. 

(^•)  2  Greenl.  Ev.,  sec.  625;  3  Hurl.  &  Nor.  276;  31  Vt.  433,  624.  See 
6  Adol.  &  El.  174,  N.  S. 


582  TRESPASS. 


Plea  of  not  guilty,  etc. 


seems  that  a  variance  in  the  description  of  the  locus  in  quo 
is  available  to  the  defendant  under  this  issue,  as  the  alle- 
gation of  place,  in  trespass  quare  clausumf regit,  is  essen- 
tially descriptive  of  the  particular  trespass  complained  of.  (/) 
But  the  variance,  to  be  available,  must  be  in  some  essential 
part  of  the  description,  (w) 

The  plea  of  "not  guilty,"  in  an  action  of  trespass  for 
taking  goods,  operates  only  as  a  denial  of  the  taking ;  and 
the  trial  of  an  issue  on  such  plea  determines  nothing  as  to 
the  right  of  property »  («) 

The  general  issue,  in  actions  for  torts,  is  regarded  as 
several,  though  it  may  be  in  form  joint ;  ip)  and  one  defend- 
ant, against  whom  there  is  no  evidence,  may  be  acquitted, 
and  a  verdict  taken  against  the  others ;  but  it  is  otherwise 
as  to  a  joint  plea  of  justification,  under  which,  if  it  is  not 
supported  as  to  all  the  defendants,  none  of  them  can  be 
protected.  (/) 

No.  271.     Plea — Not  guilty. 
In  the Court. 


Term,  iS — . 


C.  D.  ^ 

ats.  >  Trespass. 
A.  B.  3  And  the  defendant,  by  E.  F.,  his  attorney, 
comes  and  defends  the  force  and  injury,  when,  etc.,  and 
says  that  he  is  not  guilty  of  the  said  supposed  trespasses 
above  laid  to  his  charge,  or  any  or  either  of  them,  in  man- 
ner and  form  as  the  plaintiff  has  above  thereof  complained 
against  him  :  And  of  this  the  defendant  puts  himself  upon 
the  country,  etc. 

(/)  2  Greenl.  Ev.,  sec.  625;  3  Stephen's  N.  P.  2642;  10  Law  Jour.  203;  i 
Salk.  452  ;  I  Moore,  161 ;  8  Taunt.  539. 

(w)  Id. ;  1  Taunt.  495,  501.     See  13  East,  9;  S  Bing.  75;  2  Bing.  49. 

(«)  28  111.  135. 

{p)  28  Vt.  (2  Wms.)  537;  Z  Hill,  on  Torts,  317. 

(/)  2  Hill,  on  Torts,  317;  14  Johns.  156;  2  Scam.  448;  8  Geo.  201. 


TRESPASS.  583 


Pica  of  son  assault  demesne. 


No.  272.     Plea  of  SON  assault  demesne. 

{First  -pica,  not  guilty.,  as  ante,  last  -precedent.^  And 
for  a  further  plea  in  this  behah',  the  defendant  says  that  the 
plaintilf  ought  not  to  have  his  at'oresaid  action  against  him, 
the  defendant,  because  he  says,  (*)  that  the  plaintiff,  just 
before  the  said  time  when,  etc.,  to  wit,  on  the  same  day  in 
the  said  declaration  mentioned,  with  force  and  arms,  etc., 
in  the  county  aforesaid,  made  an  assault  upon  the  defend- 
ant, and  would  then  and  there  have  beaten,  bruised  and 
ill-treated  him,  if  he  had  not  immediately  defended  him- 
self against  the  plaintiff';  wherefore  the  defendant  did  then 
and  there  defend  himself  against  the  plaintiff,  as  he  lawfully 
mifjht  for  the  cause  aforesaid,  and  in  so  doing-  did  commit 
the  supposed  trespasses  m  the  said  dechiration  mentioned  ; 
And  so  the  defendant  says,  that  if  any  hurt  or  damage  then 
and  there  happened  to  the  plaintiff,  the  same  was  occasioned 
by  the  said  assault  so  made  by  the  plaintilT  upon  him,  the 
defendant,  and  in  his  necessary  defense  of  himself  against 
the  plaintiff:^  And  this  the  defendant  is  ready  to  verify  ; 
wherefore  he  prays  judgment  if  the  plaintiff  ought  to  have 
his  aforesaid  action  against  him,  etc. 

If  some  particular  trespasses  only,  of  several  charged  in 
a  declaration  or  count,  are  intended  to  be  justified,  such 
particular  trespasses  should  be  enumerated,  in  the  manner 
indicated  in  the  plea  next  following,  {q) 

In  a  plea  of  son  assault  demesne.,  a  tuoiinding  may  be 
justified  in  self-defense,  in  the  above  form  ;  but  where  the 
\'d\\  prima  yacie  only  authorizes  an  arrest,  or  touching  a 
person,  if  a  wounding  also  is  attempted  to  be  justified,  the 
occasion  thereof  roust  be  specially  alleged — as  in  the  case 
of  an  arrest  under  process,  a  resistance,  or  attempt  to  res- 
cue, must  be  averred,  (r)  In  defense  of  the  person,  an 
assault  and  battery,  etc.,  may  be  justified  ;  {s)  but  in  defense 
of  the  possession  of  personal  or  real  property,  the  defend- 
er) See  remarks,  ante,  174. 

{r)  I  Saund.  296,  297;  Id.  n.  i ;  S  T.  R.  7S,  299. 
(5)  2  Salk.  649;  I  Ld.  Raym.  177;  Bui.  N.  P.  (7  ed.  iS)  ;  7  Moore,  35. 


5S4  TRESPASS. 


Plea  of  son  assault  demesne — Defense  of  child. 


ant  must  plead  molUter  mantes  t'mposuit.  (/)  It  seems  clear 
that  the  defendant  can  not  in  any  case  justify  an  actual 
beating  and  -wounding,  unless  he  shows  in  his  plea  that 
force  was  used  or  attempted  on  the  part  of  the  plaintiff; 
but  still  he  may  justify  what  in-law  amounts  to  a  battery, 
by  way  of  molliter  manus  impostiit.  (it) 

The  following  is  a  somewhat  different  form  of  the  plea  of 
son  assault  demesne,  (v) 

No.  273.      Plea  ^  SON  assault  demesne — defense  of 

child,  etc. 

{First  -plea,  not  guilty,  as  ante,  N'o.  271.)  And  for  a 
further  plea  in  this  behalf,  as  to  the  assaulting,  beating, 
bruising,  wounding  and  ill-treating  of  the  plainiiff,  and  as 
to  the  tearing,  spoiling  and  damaging  of  the  clothes  of  the 
plaintiff,  {etc.,  enumerating  the  trespasses  charged,  or,  if  it 
/s'  only  intended  to  justify  apart,  t/ien  such  part,)  as  in  the 
said  declaration,  {or  "first  count")  mentioned,  the  defend- 
ant says  that  the  plaintiff  ought  not  to  have  his  aforesaid 
action  against  him,  the  defendant,  because  he  says,  that  the 
plaintiff,  just  before  the  said  time  when,  etc.,  to  wit,  on  the 
same  day  in  the  said  declaration  {or  "first  count")  men- 
tioned, with  force  and  arms,  etc.,  in  the  county  aforesaid, 
made  an  assault  upon  L.  B.,  then  and  there  being  the 
daughter  of  the  defendant,  and  would  then  and  there  have 
beaten,  bruised  and  ill-treated  her  the  said  L.  B.,  if  the 
defendant  had  not  immediately  defended  her ;  wherefore 
the  defendant  did  then  and  there  defend  the  said  L.  B.,  so 
being  his  daughter  as  aforesaid,  against  the  plaintiff,  as  he 
lawfully  might  for  the  cause  aforesaid,  and  in  so  doing  did 
necessarily  and  unavoidably  a  little  beat,  bruise,  {etc.,  as 
in  the  introductory  part  of  the  plea ^  doing  no  unnecessary 
damage  to  the  plaintiff  on  that  occasion;  and  so  the  defend- 
ant says,  that  ff  any  hurt  or  damage  then  and  there  hap- 
pened to  the  plaintiff,  the  same  was  occasioned  by  the  said 
assault  so  made  by  the  plaintiff  upon  the  said  L.  B.,  and  in 
the  necessary  defense  of  her   the  said  L.  B.    against  the 

(0  I  Salk.  407;  S  T.  R.  78;  Com.  Dig.  Plead.  3,  M.  15. 

{it)  6  T.  R.  562 ;  7  Taunt.  6S9;  i  Moore,  420,  S.  C ;  3  Chit.  PI.  106S,  n. 

(t*)  See  3  Chit.  PI.  1068-1070,  and  notes. 


TRESPASS.  585 

General  replication  dc  injuria,  etc. 

plaintiff;  which  are  the  same  supposed  trespasses  in  the 
introductory  part  of  this  plea  mentioned,  etc.  And  this  the 
defendant  is  ready  to  verify  ;  wherefore  he  praysjudgment, 
etc. 

See  the  form  next  preceding  this,  and  the  remarks  there- 
under. This  form  may  be  readily  adapted  to  the  case  of  an 
assault  in  defense  of  a  father,  mother,  son,  servant,  or 
master. 

No.  i*j^.      General  replication,  de  injuria,  etc. 

(Similiter  to  general  issue,  if  -pleaded  as  ante,  No.  69; 
if  not,  entitle  frst  rc-plicatio,n  as  in  that  for  mi)  And  the 
plaintiff,  as  to  the  plea  of  the  defendant  by  him  secondly 
above  pleaded,  says  that  he,  the  plaintiff,  by  reason  of 
anything  in  that  plea  alleged,  ought  not  to  be  barred  from 
having  his  aforesaid  action,  (*)  because  he  says,  that  the 
defendant,  at  the  said  time  when,  etc.,  of  his  own  wrong, 
and  without  the  cause  by  him  in  his  said  second  plea  alleged, 
committed  the  said  several  trespasses  in  that  plea  men- 
tioned, in  manner  and  form  as  the  plaintiff  has  above  com- 
plained against  the  defendant :  And  this  the  plaintiff  prays 
may  be  inquired  of  by  the  countr}',  etc.  {w) 

The  above  form  will  suffice  in  all  cases  in  trespass  where 
this  replication  is  proper,  though  where  replied  to  the  plea 
oi  son  assault  demesne,  a  form  slightly  different  is  used,  ix) 

The  general  replication,  de  injuria  sua^absque  tali  causa, 
is  adapted  to  the  denial  of  matter  of  excuse  or  justification  ; 
and  where  the  excuse  or  justification  consists  exclusively 
of  mere  matter  of  fact,  as  distinguished  from  matter  of 
record,  title,  authority,  etc.,  (which  involves  matter  of 
lazv,)  this  replication  is  the  most  appropriate  mode  of 
traversing  it.  When  the  justification  involves  matter  of 
law,  (as  where,  in  an  action  for  assault,  battery  and  false 
imprisonment,  the   defendant  justifies  under   a  capias   di- 

{-v)  See  I  Chit.  PI.  (ii  Am.  ed.)63+-6n;  3  id.   1202;   2  Swan's  Pr. 
770,  n. ;  Gould's  PI.,  cap.  7,  sees.  26-30. 
(*)  3  Chit.  PI.  1202. 


586  TRESPASS. 

General  replication  de  injuria,  etc. 

rected  to  him  as  sherifl^)  this  general  traverse  would  be  ill  ; 
but  the  plaintiff,  in  a  case  like  this,  may  traverse  sepai'ately 
any  one  material  point  in  the  plea,  which  point  may  con- 
sist either  of  the  record,  etc.,  or  of  the  matter  of  mere  fact 
pleaded  in  connection  with  it.  For  example,  he  may 
traverse  the  capias,  hy  replying  nultiel  record;  or  he  may 
admit  the  capias,  and  traverse  the  matter  of  mere  fact,  by 
alleging  that  the  defendant  "  of  his  own  wrong,  and  without 
the  residue  of  the  cause  in  the  said  plea  alleged,"  made 
the  assault,  etc.  And  when  matter  of  record,  title,  etc., 
is  alleged,  not  as  the  ground  of  the  justification,  but  only 
as  inducement,  the  general  replication,  de  injuria,  etc.,  is 
good,  {y) 

When  in  fact  the  plaintiff  made  the  first  assault,  in  de- 
fense of -his  possession,  etc.,  or  whenever,  in  answer  to  the 
defendant's  plea  of  son  assault  demesne,  he  relies  upon  new 
matter,  he  should  not  reply  generally,  de  injuria.,  etc.,  but 
should  allege  such  new  matter,  {z)  But  it  is  now  held,  that 
\ison  assault  demesne  is  pleaded,  the  plaintiff  may,  under  this 
general  replication,  show  that  the  defendant's  battery  of  him 
was  excessive,  without  a  special  replication,  or  new  assign- 
ment; ia)  though  formerly  it  was  held  otherwise,  {b) 

New  assignments. — It  is  a  general  rule,  thai  where  the 
defendant  has  committed  several  trespasses,  some  of  which 
were  justifiable,  and  others  not,  and  the  action  is  brougiit 
for  those  trespasses  which  were  not  justifiable,  but  the  de- 
fendant by  his  plea  answers  only  those  which  were  so,  (he 
being  by  the  rules  of  pleading  allowed  to  suppose  that  the 
action  was  brought  for  the  latter,)  the  plaintiff  should  new 
assign.  Thus  in  an  action  of  trespass  for  an  assault,  if 
/there  have  been  two  assaults,  one  justifiable,  on  the  ground 

(j')  Gould's  PL,  cap.  7,  sees.  26-30. 
(^z)  I  Chit.  PI.  (11  Am.  ed.)  592;  3  Id.  1203,  n. 

(a)  I  Chit.  PI.  (11  Am.  ed.)  627;  i  Steph.  N.  P.  216;  11  111.  17;  35  N.  H 
503;  4  Ind.  442;  4  Blackf.  518;  11  Md.  536;  15  Mass.  347;  25  Wend.  371. 
{J>)  I  Chit.  PI.  (11  Am.  ed.)  593,  and  cases  cited. 


TRESPASS.  5S7 


Molliter  mantis  imposuit. 


of  self-defense,  and  the  other  not,  and  the  declaration  con- 
tains only  one  count  for  an  assault,  and  the  defendant 
pleads  son  assault  demesne^  the  plaintiff  should  new  assign 
the  illegal  assault.  In  a  new  assignment,  the  plaintiff 
avers  that  he  brought  his  action,  not  for  the  trespass  in  the 
plea  mentioned,  but  for  another  and  different  trespass, 
committed  on  another  and  different  occasion — or,  in  tres- 
pass to  real  property,  in  another  and  different  place,  etc. 

In  general,  however,  a  new  assignment  is  unnecessary, 
and  the  replication  de  injuria,  etc.,  will  suffice,  when  the 
defendant  can  not  prove  all  the  matters  which  constitute  the 
substance  of  his  plea,  (c) 

For  the  law  in  respect  to  new  assignments,  see  i  Chit. 
PL  (11  Am.  ed.)  62410  640;  and  for  forms,  see  3  id.  1213 
to  1218 ;  and  see  also  a  form  of  new  assignment  to  a  plea 
in' abatement,  ante.  No.  65,  and  a  form  of  new  assignment 
to  a  plea  oilibe^-uni  tencmcntam,  No.  289,  ^ost. 

No.  275.  Pica — MOLLITER  MANUS  IMPOSUIT,  to  -pre- 
serve the  peace — plaintiff  and  a  third  person  Jighting 
together. 

[Pirst  plea,  not  guilty,  as  ante,iVb.  2/1  ;  second  plea  as 
in  No.  272,  ante,  to  the  asterisk,  and  thence  as  Jollozvs :) 
that  the  plaintiff  and  one  O.  P.,  at  the  said  time  when, 
etc.,  in  the  county  aforesaid,  were  fighting  together,  and 
striving  with  force  and  arms  to  beat  and  wound  each  other, 
against  the  peace  of  the  People  of  this  state  ;  whereupon 
the  defendant,  being  then  and  there  present,  for  the  preser- 
vation of  the  peace  of  the  said  People,  and  that  the  plaint- 
iff and  the  said  O.  P.  might  do  no  hurt  to  each  other,  and 
in  order  to  separate  them,  then  and  there  gently  laid  his 
hands  upon  the  plaintiff,  as  he  lawfully  might  for  the  cause 
aforesaid  ;  which  are  the  same  supposed  trespasses  in  the 
said  de.claration  mentioned,  and  whereof  the  plaintiff  has 
above  thereof  complained  against  the  detendant :  And 
this  the  defendant  is  ready  10  verify ;  wherefore  he  pravs 
judgment,  etc. 

(c)  4  N.  &  M.  470;  I  H.  &  W.  15,  S.  C. ;  17  Ohio,  456;  2  Swan's  Pr.  772, 
774,  notes. 


588  TRESPASS. 

Plea  of  justification  in  defense  of  dwelling,  etc. 

In  trespass  for  a  simple  assault,  a  plea  of  mollitcr  maims 
iijiposiiit,  in  reasonable  efforts  to  prevent  a  breach  of  the 
peace  by  the  plaintiff's  assault  on  a  third  person,  is  good, 
but  aliter  when  the  declaration  alleges  aggravated  force 
on  the  part  of  the  defendant,  id) 

This  plea  is  not  a  full  answer  to  a  declaration  charging 
an  assault  and  ivoimding;  and  if,  when  pleaded  to  sucli  a 
declaration,  issue  is  taken  on  the  plea,  and  found  for  the 
defendant,  judgment  must  be  rendered  for  the  plaintiff, 
noil  obstante  veredicto,  for  the  plea  leaves  a  part  of  the 
declaration  unanswered,  {c)  The  plea  in  such  case  should 
either  deny  the  beating,  wounding,  etc.,  or  state  facts  and 
circumstances  of  resistance,  etc.,  to  justify  it.  (_/) 

No.     276.         Plea MOLLITER     MANUS     IMPOSUIT,     tO      -pZlt 

-plaintiff  out  of  defeiidanC s  dwelling-house. 

{First  -plea,  not  guilty,  as  ante.  No.  271  ;  second  plea 
as  in  No.  272,  ante,  to  the  asterisk,  and  thence  as  follows  :^ 
that  the  defendant,  before  and  at  the  said  time  when,  etc., 
was  lawfully  possessed  of  a  certain  dwelling-house,  with 
the  appurtenances,  situate  in,  etc.  ;  and  being  so 'possessed 
thereof,  the  plaintiff,  just  before  the  said  time  when,  etc., 
to  wit,  on  the  sam_e  day  in  the  said  declaration  mentioned, 
w\is  unlawfully  in  the  said  dwelling-house,  and  with  force 
and  arms  making  a  great  noise  and  disturbance  therein, 
and  at  the  said  time  when,  etc.,  staid  and  continued  therein, 
making  such  noise  and  disturbance,  without  the  leave  or 
license,  and  against  the  will,  of  the  defendant,  and  during 
all  that  time  there  greatly  disturbed  and  disquieted  the 
defendant  and  his  family  in  the  peaceable  and  quiet  pos- 
session and  enjoyment  of  his  said  dwelling-house  ;  and 
thereupon  the  defendant  then  and  there  requested  the 
plaintiff  to  cease  making  his  said  noise  and  disturbance, 
and  to  depart  from  and  out  of  the  said  dwelling-house, 
which  the  plaintiff  then  and  there  wholly  refused  to  do ; 
whereupon  the  defendant,  in  defense  of  the  possession  of 
his  said  dwelling-house,  at  the  said  time  when,  etc.,  gently 

(rf)  32  Vt.  (3  Shaw,)  407.     See  3  Chit.  PI.  1068,  n. 
(<;)  17  Ohio,  456.     See  3  Chit.  PI.  1068,  n. 
(_/)  2  Swan's  Pr.  773,  n.  a. 


TRESPASS.  589 

Plea  cjf  justification  by  a  school-master,  etc. 

laid  his  hands  upon  the  plaintiff,  in  order  to  remove,  and 
did  then  and  there  remove,  the  plaintiff  from  and  out  of  the 
said  dwelling-house,  as  he  lawfully  might  for  the  cause 
aforesaid  ;  (*)  which  are  the  same  supposed  trespasses  in 
the  said  declaration  mentioned,  and  whereof  the  plaintiff 
has  complained  against  the  defendant.  And  this  the  de- 
fendant is  ready  to  verify ;  wherefore  he  prays  judgment, 
etc.     . 

If  there  was  an  actual  resistance  on  the  part  of  the  plaint- 
iff, and  in  consequence  thereof  any  tvounding,  or  a  greater 
degree  of  violence  on  the  defendant's  part  than  would  other- 
wise have  been  justifiable,  the  facts  should  be  alleged  ac- 
cordingly, which  may  be  done  by  inserting,  at  the  asterisk 
in  the  above  form,  the  following  or  a  similar  averment  ■ 
"and  because  the  plaintiff  then  and  there  resisted  the  de- 
fendant in  that  behalf,  and  assaulted  him,  and  used  viclenl 
and  menacing  language  and  gestures  towards  him,  and 
would  then  and  there  have  beaten,  bruised  and  ill-treated 
the  defendant,  if  he  had  not  immediately  defended  himself 
against  the  plaintiff,  he,  the  defendant,  did  then  and  there 
defend  himself  against  the  plaintiff,  and  in  so  doing  did 
necessarily  and  unavoidably  a  little  beat,  bruise,  wound, 
(etc.,  according  to  the  facts  and  the  allegations  of  the  dec- 
laration,) doing  no  unnecessary  damage  to  the  plaintiff  on 
that  occasion  ;  which  are  the  same,"  etc. 

The  plaintiff  may  reply  de  injuria,  etc.,  as  ante.  No. 
274.     See  the  observations  under  that  form  and  No.  273. 

No.  277.     Plea  by  a  school-master,  justifying  a  battery, 
etc.      [12  Ohio,  191.] 

{First  ^lea,  not  guilty,  as  ante,  iVb.  271  ;  second  plea  as 
in  No.  272,  ante,  to  the  asterisk,  and  thence  as  follows :) 
that  the  defendant,  at  the  said  time  when,  etc.,  was  a 
school-master,  teaching  a  certain  school  in  the  county 
aforesaid ;  and  the  plaintifT  was  then  a  scholar  in  and  at- 
tending the  said  school,  and  then  behaved  and  conducted 
himself  in  an  improper  and  disorderly  manner,  in  the  said 
school,  and  then  and  there  refused  to  obey  the  reasonable 


590  TRESPASS. 


Plea  of  justification  bj  a  justice  of  the  peace. 


and  necessary  rules  prescribed  for  the  government  of  the 
said  school  ;  wherefore  the  defendant  then  and  there  mod- 
erately chastised  the  plaintiff  for  his  said  misbehavior,  as 
he  lawfully  might  for  the  cause  aforesaid ;  which  is  the 
same  supposed  assaulting,  etc.,  in  the  said  declaration 
mentioned  :  And  this  the  defendant  is  ready  to  verify  ; 
wherefore  he  prays  judgment,  etc. 

• 

The  plaintiff  may  reply  de  injuria,  etc.  See  the  obser- 
vations under  Nos.  272  and  273,  ante. 

JVo.  278.  Plea  by  a  justice  of  the  peace — iti  an  action 
against  him  and  another — justifying  the  issuing  of  a 
capias,  under  zvhich  f)laintiff  was  arrested  and  ini- 
■prisoned.  (g) 

(Thirst  plea,  general  issue,  as  ante,  JVo.  271.)  And  for 
a  further  plea  in  this  behalf,  the  defendant  C.  D.  says  that 
the  plaintiff  ought  not  to  have  his  aforesaid  action  against 
him  the  said  C.  D.,  because  he  says,  that  he  the  said  C.  D., 
before  and  at  the  said  time  when,  etc.,  was  a  justice  of  the 
peace  in  and  for  the  county  aforesaid ;  and  so  being  such 
justice,  and  having  jurisdiction  of  the  matters  hereinafter 
mentioned,  the  defendant  E.  F.,  on,  etc.,  there  made  oath 
before  him  the  said  C,  D.,  as  such  justice  of  the  peace, 
that  the  plaintiff  was  indebted  to  the  said  E.  F.  in  the  sum 

of dollars,  on  a  promissory  note  bearing  date,  etc., 

and  due  on,  etc.,  for  the  sum  aforesaid,  and  that  there  was 
danger  that  such  demand  would  be  lost  unless  the  plaintiff 
should  be  held  to  bail,  and  stated  the  cause  of  such  danger, 
so  as  to  satisfy  the  said  C.  D.  that  the  plaintiff  had  been 
guilty  of  fraud,  and  that  there  was  good  reason  on  the  part  of 
the  said  E.  F.  to  apprehend  such  danger ;  and  thereupon 
the  said  C.  D.,  as  such  justice  as  aforesaid,  did  then  and 
there  issue  a  certain  writ  of  capias  ad  respondendum,  in 
the  name  of  the  People  of  the  state  of  Illinois,  directed  to 
any  constable  of  the  said  county  to  execute,  commanding 
such  constable  to  take  the  body  of  the  plaintiff,  and  to  bring 
him  forthwith  before  the  said  C.  D.,  as  such  justice  as 
aforesaid,  unless  special  bail  should  be  entered,  and  if  such 
special  bail  should  be  entered,  then  to  summon  the  plaintiff 

iff)  27  111-  469- 


TRESPASS.  591 


Plea  by  officer,  justifying  arrest  without  process. 

to  appear  before  the  said  C.  D.,  as  such  justice  as  afore- 
said, at,  etc.,  on,  etc.,  at  —  o'cfock,  — .  i\i.,  to  answer  the 
complaint  of  the  said  E.  F.  for  a  failure  to  pay  him  a  cer- 
tain demand  not  exceeding  two  hundred  dollars,  and  to 
make  due  return  of  the  said  writ  as  the  law  directs  ;  which 
said  writ  the  said  C.  D.,  as  such  justice  as  aforesaid,  there- 
upon, to  wit,  on  the  day  first  aforesaid,  there  delivered  to 
one  G.  H.,  who  was  then  and  there  a  constable  of  the 
county  aforesaid,  to  be  by  him  executed  according  to  law  ; 
as  he  the  said  C.  D.  lawfully  might  for  the  cause  aforesaid  ; 
and  the  said  G.  H.,  as  such  constable  as  aforesaid,  in  obe- 
dience to  the  said  writ,  afterwards,  to  wit,  on  the  day  afore- 
said, there  gently  laid  his  hands  upon  the  plaintiff,  and 
arrested  him,  using  only  necessary  force  in  so  doing,  and 
then  and  there  brought  the  plaintiff  (he  failing  to  enter 
special  bail,)  before  the  said  C.  D.,  as  such  justice  as  afore- 
said, at,  etc.,  aforesaid,  for  trial;  whereupon  the  plaintiff 

then  and  there  confessed  a  judgment  for  the  sum  of  

dollars,  in  favor  of  the  said  E.  F.,  and  thereupon  was  then 
and  there  released  from  such  arrest :  which  are  the  same 
supposed  trespasses  in  the  said  declaration  mentioned,  and 
whereof  the  plaintiff  has  complained,  etc.  And  this  the 
said  C.  D.  is  ready  to  verify  ;  wherefore  he  prays  judg- 
ment, etc. 

No.  279.     Plea  justifying  an  arrest.,  as  a  constable,  zvith- 
out  process,  on  suspicion  of  felony. 

{First  plea,  not  guilty,  as  ante,  ISFo.  271  ;  second  plea  as 
in  No.  272,  ante,  to  the  asterisk,  and  thence  as  follows:) 
that  before  the  said  time  when,  etc.,  to  wit,  on,  etc.,  in  the 

county  aforesaid,  five  -ivatches,  of  the  value  of dollars, 

the  property  of  one  J.  K.,  were  feloniously  stolen,  taken 
and  carried  away  from  and  out  of  the  possession  of  the  said 
J.  K.  ;  and  shortly  afterwards,  to  wit,  at  the  said  time 
when,  etc.,  the  defendant  had  reasonable  and  probable 
cause  to  suspect,  and  did  suspect,  that  the  plaintitF  had  felo- 
niously stolen  and  carried  away  the  said  ivatches,  in  this,  to 
wit,  that  the  plaintiff'  was  then  and  there  found  lurking 
about,  in  a  suspicious  manner,  near  the  shop  whence  the 
said  watches  were  so  stolen  and  carried  away,  shortly  after 
the  "same  were  so  stolen  and  carried  away  as  aforesaid, 
and  also  in  this,  to  wit,  that  upon  the  plaintift^'s  being  then 
and  there  searched,  one  zuatch,  resembling  one  of  the  said 


592  TRESPASS. 


Plea  bj  officer,  justifying  arrest  without  process. 


watches  so  stolen  and  carried  away  from  the  said  J.  K.  as 
aforesaid,  was  then  and  there  found  in  the  possession  and 
on  the  person  of  the  plaintiff,  which  said  zuatch,  so  found  in 
the  possession  and  on  the  person  of  the  plaintiff,  the  defend- 
ant then  and  there  had  reasonable  and  probable  cause  to 
suspect  and  believe,  and  did  suspect  and  believe,  to  be  one 
of  the  said  watches  so  stolen  and  carried  awa}^  from  the 
said  J.  K.  as  aforesaid ;  whereupon,  it  being  then  neces- 
sary that  the  plaintiff  should  be  arrested,  in  order  to  pre- 
vent his  escape,  the  defendant,  who  was  then  one  of  the 
constables  in  and  for  the  county  aforesaid,  for  the  causes 
aforesaid  then  and  there  gently  laid  his  hands  on  the  plaint- 
iff, and  took  and  arrested  him,  and  conveyed  him  (*)  before 
one  L.  M.,  then  one  of  the  justices  of  the  peace  in  and  for 
the  county  aforesaid,  to  be  examined  by  and  before  the  said 
justice  touching  the  said  larceny,  and  to  be  further  dealt 
with  according  to  law  ;  and  thereupon  the  plaintiff  was  then 
and  there  detained  by  order  of  the  said  justice,  until  the 

day  of ,  in  the  year  aforesaid  ;  on  which  day  the 

plaintiff  was  there  examined  by  and  before  the  said  L.  M., 
then  still  being  such  justice  as  aforesaid,  touching  the  said 
larceny,  and  was  thereupon  by  the  said  justice  then  and 
there  discharged  out  of  custody  ;  and  by  means  of  the  sev- 
eral premises  the  plaintiff  was  kept  and  detained  in  prison 
for  the  space  of  time  in  the  said  declaration  mentioned,  the 
same  being  a  reasonable  imprisonment,  and  lawful  and 
just,  for  the  cause  aforesaid  ;  which  are  the  same  supposed 
trespasses  in  the  said  declaration  mentioned,  etc.  And  this 
the  defendant  is  ready  to  verify  ;  wherefore  he  prays  judg- 
ment, etc. 

No.  280.     Another  form  o/plea  by  an  officer,  justifying 
an  arrest  without  process,  on  suspicion  of  felony.  (Ji) 

{First  plea,  not  guilty,  as  ante.  No.  271  ;  second  plea 
as  in  No.  I'ji,  ante,  to  the  asterisk,  and  thence  asfollozus:) 
that  shortly  before  the  said  time  when,  etc.,  to  wit,  on,  etc., 
in  the  county  aforesaid,  one  horse,  of  the 

value  of  dollars,  the  property  of  one  O.  P.,  was  felo- 
niously stolen,  taken  and  carried  away  ;  and  before  and  at 
the  said  time  of  the  committing  of  the  said  larcen}^  the 
plaintifi'  was  an  idle  person,  dwelling  and  sta3ang  in-  the 

(//)  43  111.  95;  51  111.  401. 


TRESPASS.  593 


Plea  by  officer,  justifying  arrest  without  process. 

neighborhood  where  the  said  larceny  was  committed,  and 
consorting  with  divers  persons  of  known  bad  character  and 
repute  ;  and  after  the  committing  of  the  said  larceny,  and 
before  the  said  time  when,  etc.,  the  defendant  was  informed 
that  tlie  plaintitf  feloniously  aided  and  abetted  in  the  com- 
mitdng  of  the  said  larceny  :  by  reason  of  which  premises 
the  defendant,  at  the  said  time  when,  etc.,  had  good 
and  probable  cause  to  suspect,  and  did  strongly  suspect, 
the  plaintiff  to  have  been  guilty  of,  or  concerned  in,  the 
committing  of  the  said  larceny  ;  wherefore  the  defendant, 
who  was  then  a  constable  of  the  count}^  aforesaid,  then  and 
there  gently  laid  his  hands  on  the  plaintiff,  and  arrested 
him,  there  then  being  danger  that  he  would  otherwise 
escape,  and  conveyed  him  {etc.,  -proceeding in  like  manner 
as  in  the  last  precedent,  from  the  asterisk  to  the  end.) 

See  the  remarks  under  the  replication  de  injuria,  etc.. 
No.  274,  ante. 

A  peace-officer  will  be  justified  in  making  an  arrest,  in  his 
own  county,  (/)  without  warrant,  when  all  the  facts  show 
that  there  was  strong  probable  cause  to  believe  that  the  ac- 
cused was  guilty,  and  there  was  danger  of  his  escape,  (y') 

In  case  of  a  felony  actually  committed,  a  constable  may, 
upon  probable  suspicion,  arrest  the  person  suspected;  but 
if  the  suspicion  does  not  arise  in  the  officer's  own  mind, 
he  should  inquire  scrupulously  into  the  causes  of  the  sus- 
picion ;  and  he  will  be  justified  in  making  the  arrest,  should 
it  afterwards  appear  that  no  felony  had  been  committed, 
provided  he  had  reasonable  grounds  to  suspect  the  person 
arrested — such  grounds  as  should  influence  a  prudent  and 
cautious  man  under  the  circumstances.  A  constable,. hav- 
ing reasonable  ground  to  suspect  that  a  felony  has  been 
committed,  is  authorized  to  detain  the  suspected  person 
until  inquiry  can  be  made  by  the  proper  authorities ;  and 
whether  or  not  there  was  such  reasonable  ground  for  sus- 
picion, is  a   mixed  question  of  law  and  fact — the  circum- 

(?)  5t  III.  401.     See  S6  111.  .75  ;  76  III.  224. 
U)  43  111-  95- 

38 


594  TRESPASS. 

Plea  justifying  arrest  by  private  person,  etc. 

Stances  to  show  it  reasonable  being  the  fact,  but  whether, 
admitting  them  to  be  truly  alleged,  the  circumstances 
amount  to  a  justification,  being  a  question  of  law.  (k) 

In  a  plea  justifying  the  apprehension  of  the  plaintiff  on 
suspicion  of  felony,  the  cause  of  suspicion  must  be 
shown.  (/) 

JVo.  281.      Pica  justifying  an   arrest^  etc.^  by  a  private 
person,  on  a  charge  of  felony. 

{Fii'st^lca^  not  guilty,  as  ante,  No.  271  ;  second  pica  as 
in  JVo.  272,  ante,  to  the  asterisk,  and  thence  as  follozvs:) 
that  the  plaintiff,  before  the  said  time  when,  etc.,  to  wit, 
on,  etc.,  in  the  county  aforesaid,  ten  bank-hills,  each  of  the 

denomination  and  value  of dollars,  the  property  of  the 

defendant,  feloniously  did  steal,  take  and  carry  away  ;  and 
thereupon  the  defendant,  immediately  after  the  committing 
of  the  said  larceny,  to  wit,  at  the  said  time  when,  etc.,  for 
the  cause  aforesaid,  and  to  prevent  the  escape  of  the  plaint- 
iff, who  was  then  and  there  endeavoring  to  escape,  there 
gently  laid  hands  on  the  plaintiff,  and  gave  him  in  charge 
to  one  J.  K.,  then  being  one  of  the  constables  in  and  for 
the  county  aforesaid;  and  on  that  occasion  the  said  J.  K., 
(so  being  such  constable,)  at  the  request  of  the  defendant, 
then  and  there  took  the  plaintiff  into  custody,  and  conveyed 
him  before  one  L.  M.,  then  being  one  of  the  justices  of 
the  peace  in  and  for  the  county  aforesaid,  to  be  exam- 
ined before  the  said  justice  touching  the  said  larcenjs  and 
to  be  further  dealt  with  according  to  law  ;  and  b}^  means  of 
the  premises  the  plaintiff  was  imprisoned,  and  detained  in 
prison,  for  the  space  of  time  in  the  said  declaration  men- 
tioned, the  same  being  a  reasonable  imprisonment,  and 
lawful  and  just,  for  the  cause  aforesaid  :  which  are  the 
same  supposed  trespasses  in  the  said  declaration  mentioned, 
etc.  And  this  the  defendant  is  ready  to  verify  ;  wherefore 
he  prays  judgment,  etc. 

See  the  observations  under  the  replication  de  injuria, 
etc.,  No.  274,  ante. 

{k)  51  111.  401.  See  I  Hill.  Torts,  195,  a;  5  Cush.  2S1 ;  15  Eng.  C  L. 
618;  5  Bing.  554. 

(/)  4  Taunt.  34;  Holt  C.  N.  P.  47S;  3  Chit.  PI.  1081,  n. 


TRESPASS.  595 

Plea  by  officer,  justifying  taking  property  under  execution,  etc 

When  the  magistrate  has  full  possession  of  the  charge, 
the  party  laying  it,  in  general,  ceases  to  be  an  actor  in  the 
matter,  and  need  not  justify  acts  done  subsequently.  (/) 

A  private  individual  may  arrest  a  person  guilty  of  crime, 
when  it  is  necessary  to  prevent  the  escape  of  the  accused, 
and  have  him  taken  before  a  proper  officer  for  examina- 
tion. But  such  private  individual  can  not  justify  such  ar- 
rest on  the  ground  of  a  suspicion  of  guilt  only — guilt  in 
such  case  must  be  shown,  {in)  There  is  however  some 
conflict  of  authorities  on  this  point.  See  precedents  of 
pleas  by  private  individuals,  justifying  arrests  on  suspicion 
of  felony,  (w) 

JVo.  282.     Pica  by  a  sheriffs  justify  ing  the  taking  of  goods  ^ 
etc.,  under  a  fieri  facias. 

{First  plea,  not  guilty,  as  ante,  A^o.  271  ;  second  plea 
as  in  iVo.  272,  ante,  to  the  asterisk,  and  thence  as  follozvs :) 
that  one  J.  K.,  before  the  said  time  when,  etc.,  to  wit,  on, 

etc.,  sued  out  of  the Court  of  the  said  county  of 

a  certain  writ  of  iicri  facias,  of  that  date,  directed  to  the 
sheriff  of  the  county  aforesaid,  by  which  said  writ  the  Peo- 
ple of  the  state  of  Illinois  commanded  such  sheriff  that  of 
the  goods  and  chattels,  lands  and  tenements,  in  his  county, 
of  the  plaintiff,  such  sheriff  should  cause  to  be  made  the 

sum  of dollars,  damages,  and  the  sum  of dollars, 

costs  of  suit,  which  by  the  consideration  of  the  same  court, 

on,  etc.,  in  the term,  etc.,  the  said  J.  K.  recovered 

against  the  plaintiff,  together  with  interest  thereon  at  the 
rate  of  six  per  centum  per  annum  from  the  time  of  the  re- 
covery of  the  same  as  aforesaid,  and  also  the  further  sum 

of ,  accruing  costs  on  the   said   judgment,  and 

that  such  sheriff  should  have  those  moneys  ready  to  render 
to  the  said  J.  K.,  according  to  law,  and  should  make  re- 
turn of  the  said  writ  in  ninety  days  after  the  said  date 
thereof;  which  said  writ  afterwards,  and  before  the  said 
time  when,  etc.,  to  wit,  on  the  said  day  of  the  date  thereof, 
was  there   delivered  to  the  defendant,  who  then  and  from 

(/)  3  Chit.  PI.  loSo,  n. 

(w)  43  111.  95;  51  111.  401. 

(m)  3  Chit.  PI.  1081 ;  2  Swan's  Pr.  780. 


596  TRESPASS. 

Plea  by  officer,  justifying  taking  property  under  execution,  etc. 

thenceforth  until  and  at  and  after  the  said  time  wiien,  etc., 
was  sheriff  of  the  county  aforesaid,  to  be  executed  in  due 
form  of  law  ;  (*)  by  virtue  of  which  said  writ  the  defendant, 
as  such  sheriff  as  aforesaid,  afterwards,  and  before  the  return- 
day  of  the  said  writ,  to  wit,  at  the  said  time  when,  etc., 
[peaceably  and  quietly  entered  into  the  said  dwelling- 
house  in  which,  etc.,  (the  outer  door  thereof  being  then 
open,)  in  order  to  seize  and  take,  and  then  and  there] 
seized  and  took  in  execution  the  said  goods  and  chattels  of 
the  plaintiff,  in  the  said  declaration  mentioned,  the  same 
then  and  there  being  [in  the  said  dwelling-house,  and] 
liable  to  be  seized  and  taken  by  virtue  of  the  said  writ, 
(which  was  then  in  full  force  and  unsatisfied,)  for  the  pur- 
pose of  levjnng  the  moneys  in  the  said  writ  mentioned; 
[and  in  so  doing,  the  defendant  then  and  there  necessarily 
and  unavoidably  made  a  little  noise  and  disturbance  in  the 
said  dwelling-house,  and  continued  therein,  making  such 
noise  and  disturbance,  for  the  space  of  time  in  ■  the  said 
declaration  mentioned,  as  he  lawfully  might  for  the  cause 
aforesaid,  doing  no  unnecessary  damage  to  the  plaintiff  on 
that  occasion  ;]  and  afterwards,  and  before  the  return-day 
of  the  said  writ,  to  wit,  on,  etc.,  in  the  county  aforesaid, 
the  defendant,  upon  due  notice  given  according  to  law, 
sold  the  said  goods  and  chattels,  and  by  such  sale  thereof 

caused  to  be  made  the  sum  of dollars,  [parcel  of]  the 

damages  and  costs  aforesaid :  which  are  the  same  sup- 
posed trespasses  in  the  said  declaration  mentioned,  etc. 
And  this  the  defendant  is  ready  to  verify  ;  wherefore  he 
prays  judgment,  etc. 

The  allegation  of  the  sale  of  the  goods  is  perhaps  unnec- 
essary, and  should  of  course  be  omitted  if  there  has  been 
no  sale. 

A  plea  of  justification  under  any  other  form  of  process 
can  readily  be  framed  from  the  above  precedent.  It  is 
said  that  an  officer  justifying  under  mesne  (not  final)  pro- 
cess, must  show  a  return,  {p) 

Where  the  plaintiff  in  the  original  action  justifies  under  a 

fieri  facias,   he  must  allege   a  judgment,  but  an  officer 

need    not ;  and  in  trespass  against  both,  if  there  is  any 

{o)  Tidd,  (9  ed.)  1033,  a;  3  Chit.  PI.  1135,  n. ;  10  East,  82 ;  5  B.  &  C.  48S. 


TRESPASS.  597 

Replication  to  a  plea  justifying  under  process. 

doubt  as  to  the  regularity  of  the  judgment,  the  latter  should 
plead  separately.  (^) 

It  sometimes  happens,  where  there  is  an  execution 
against  a  debtor,  that  a  fraudulent  conveyance  of  his  goods 
to  a  third  person,  in  whose  house  they  are  taken,  is  set  up, 
and  the  latter  brings  an  action  of  trespass ;  in  which  case 
the  justification  must  be  confined  to  the  entry  into  the 
house,  and  the  plaintiff's  property  in  the  goods  disputed 
under  the  general  issue.  The  plea  in  such  case  is  similar 
to  the  above  form,  but  ailleging  an  execution  against  "one 
Li.  M.,"  and  at  the  asterisk  inserting  this  averment :  "And 
the  defendant  further  says,  that  before  and  at  the  said  time 
when,  etc.,  divers  goods  and  chattels  of  the  said  L.  M., 
liable  to  be  taken  in  execution  by  virtue  of  the  said  writ, 
were  in  the  said  dwelling-house  in  which,  etc.  ;  and  that 
thereupon,  by  virtue  of  the  said  writ,  the  defendant,"  etc., — 
alleging  the  entr}-^  into  the  plaintifT's  dwelling-house,  and 
the  seizure  of  the  goods  of  L.  M.  therein,  and  omitting 
what  relates  to  the  sale  of  the  goods,  (g) 

See  the   observations    under   forms   No.    272    and    274, 


No.  283.  Replication — to  a  -pica  of  j'ustijication  under 
■process — protesting  or  admitting  the  process,  and  de 
INJURIA,  ETC.,  as  to  the  residue. 

[As  in  JVo.  274,  ante,  to  the  asterisk,  and  thence  as  fol- 
lows:') because  protesting  that  the  said  writ  of was 

not  issued,  or  delivered  {or,  "although  true  it  is  that  the 
said  writ  of was  issued,  and  delivered  ")  to  the  defend- 
ant as  such  sheriff,  in  manner  and  form  as  the  defendant 
has  above  in  his  said  second  plea  alleged,  nevertheless,  for 
replication  in  this  behalf,  the  plaintifT  says,  that  the  de- 
fendant, at  the  said  time  when,  etc.,  of  his  own  wrong, 
and  without  the  residue  of  the  cause  in  that  plea  alleged, 
committed  the  trespasses  in  the  said  declaration  mentioned, 
in  manner  ana  form  as  the  plaintiff  has  therein  above  corn- 
er) Com.  Dig.  Plead.  3,  M.  24;  3  Chit.  PI.  1133,  n.  See  4  Scam.  411. 
(<?')  \  Chit.  PI.  1 135. 


598  TRESPASS. 


Injury  caused  by  plaintiff's  own  negligence,  etc. — License,  etc. 

plained  against  the  defendant :  And  this  the  plaintiff'  prays 
ma}'  be  inquired  of  by  the  country,  etc. 

See  the  remarks  under  the  replication  ie  injuria^  etc.. 
No.  274,  ante. 

No.  284.  Pica  {tn  trespass  for  driving  a  carriage  against, 
the  ■plaintiff'' s^  that  the  injury  was  caused  by  the  plaint- 
iff^ s  7iegligcncc. 

[J^irst  plea,  not  guilty,  as  ante,  JVo.  271  ;  second  plea  as 
in  No.  272,  ante,  to  the  asterisk,  and  thence  as  follows :) 
that  before  and  at  the  said  time  when,  etc.,  he,  the  defend- 
ant, was  driving  his  said  carriage  in  and  along  the  said 
highway,  the  said  carriage  of  the  plaintiff' then  also  being 
and  going  in  and  along  the  said  highway  ;  nevertheless  the 
defendant  in  fact  says,  that  the  said  carriage  of  the  plaintiff", 
at  the  said  time  when,  etc.,  was  so  carelessly,  negligently 
and  improperly  managed,  in  the  said  highway,  near  to  the 
said  carriage  of  the  defendant,  that  by  reason  thereof  the 
said  carriage  of  the  defendant,  by  accident,  and  whhout 
any  default  on  the  part  of  the  defendant,  but  by  and  through 
the  want  of  due  care  in  the  management  of  the  said  car- 
riage of  the  plaintiff^,  then  and  tnere  was  driven  upon  and 
against  the  said  carriage  of  the  plaintiff",  and  thereby  the 
plaintiff'  sustained  the  injury  in  the  said  declaration  men- 
tioned ;  and  so  the  defendant  in  fact  sa3'S5  that  if  an}^  hurt 
or  damage  happened  to  the  plaintiff"  or  his  said  carriage,  it 
was  caused  by  such  accident,  and  not  by  the  default  of  the 
defendant ;  which  are  the  same  supposed  trespasses  in  the 
said  declaration  mentioned.  And  this  the  defendant  is 
ready  to  verify  ;  wherefore  he  prays  judgment,  etc. 

The  general  replication  de  injuria,  etc.,  No.  274,  ante, 
may  be  replied  to  the  above  plea. 

No.  285.     Plea  of  license. 

{First  plea,  not  guilty,  as  ante.  No.  271  ;  second  plea 
as  in  No.  272,  ante,  to  the  asterisk,  and  thence  as  follows :) 
that  he,  the  defendant,  at  the  said  time  {or  "  several  times") 
when,  etc.,  by  the  leave  and  license  of  the  plaintiff"  to  him 
for  that  purpose  given  and  granted,  committed  the  several 
supposed  trespasses  in  the  said  declaration  mentioned,  as 


TRESPASS.  599 

Replication  to  plea  of  license,  etc. 

he  lawfully  might  for  the  cause  aforesaid :  And  this  the 
defendant  is  ready  to  verify ;  wherefore  he  prays  judg- 
ment, etc. 

No.  286.     Replication  to  -plea  of  license. 

{As  in  No.  274,  ante,  to  the  asterisk^  and  thence  as  fol- 
lows :)'be.zdi\xs^  he  says,  that  the  defendant,  at  the  said  time 
{or  "  several  times")  when,  etc.,  of  his  own  wrong,  and 
without  the  leave  and  license  of  the  plaintiff  to  him,  the 
defendant,  first  given  and  granted,  committed  the  said  tres- 
passes, in  manner  and  form  as  the  plaintiff  has  above 
thereof  complained  against  him  :  And  this  the  plaintiff 
prays  may  be  inquir  '^  ^f  by  the  country,  etc. 
•  •?# 

Where  there  has  been  a  revocation  of  the  license  before 
the  trespass,  it  should  be  set  up  in  a  replication,  (r) 

In  trespass,  a  license  must  be  specially  pleaded,  and  can 
not  be  given  in  evidence  under  the  plea  of  not  guilty.  (5) 

The  plea  of  license  may  be  supported  by  proof  of  a 
license  in  law,  as  well  as  in  fact,  and  it  is  immaterial 
whether  it  be  expressed,  or  implied  from  circumstances,  {i) 
Evidence  of  a  familiar  intimacy  in  the  fam.ily  may  be  given 
in  support  of  this  plea,  {u)  An  entry  to  execute  legal  pro- 
cess, or  to  distrain  for  rent,  or  for  damage  ;  or  an  entry  by 
a  remainder-man  or  a  reversioner,  to  see  whether  waste  has 
been  done,  or  repairs  made  ;  or  by  a  commoner,  to  view 
his  cattle  ;  or  by  a  traveler,  into  an  inn  ;  or  by  a  landlord, 
to  take  possession,  after  the  expiration  of  the  tenant's  lease  ; 
or  an  entry  into  another's  house  at  usual  and  reasonable 
hours,  and  in  the  customary  manner,  for  anv  of  the  ordi- 
nary purposes  of  life ;  may  be  given  in  evidence  under  this 
plea.  [V) 

(r)  I  Saund.  300,  a;  2  Saund.  5,  n.  3.     But  see  11  East,  451 ;  3  Chit.  PI. 

1 2 10,  n. 
(5)  7  Term,  i66;   2  Taunt.  156;   7  Blackf.  373;    i  Chit.  PI.  (11  Am.  ed.) 

SOS- 
CO  2  Grcenl.  Ev.,  sec.  627. 
(a)  12  Johns.  408. 
(f)  2  Greeal.   Ev.,  sec.  627;   3  Camp.  524;  5  Bing.  N.  C.  569;  5  Cora. 

Dig.  PI.  805.     See  41  111.  279. 


6oo  TRESPASS. 

Plea  of  libertun  tenementum,  etc. 

The  evidence  must  cover  all  the  trespasses  proved,  or  it 
will  not  sustain  the  justification,  {w) 

Evidence  of  a  verbal  agreement  for  the  sale  of  the  land 
by  the  plaintiff  to  the  defendant,  is  admissible  under  a  plea 
of  license  to  enter,  and  may  suffice  to  support  the  plea  as 
to  the  entry  only  ;  but  it  is  not  sufficient  to  maintain  the 
plea  in  respect  to  an}-  act  which  a  tenant  at  will  may  not 
lawfully  do.  (.v)  Nor  will  such  license  avail  to  justify  acts 
done  after  it  has  been  revoked,  (jy) 

Where  a  license  in  law  is  pleaded,  the  plaintiff  can  not 
give  in' evidence  a  subsequent  act  of  the  defendant,  which 
renders  him  a  trespasser  ab  initio;  but  it  must  be  specially 
replied,  {z)  So  if  the  defendant  justifies  as  preventing  a 
tortious  act  of  the  plaintiff,  and  the  plaintiff  relies  on  a 
license  to  do  the  act,  he  can  not  give  the  license  in  evidence 
under  the  general  replication  de  injuria,  etc.,  but  must 
allege  it  in  a  special  replication,  [a) 

No.  287.     Plea  of  liberum  tenementum. 

{Kirsi  plea,  not  guilty,  as  ante,  JVo.  271  ;  second ^Ica  as 
in  No.  272,  ante,  to  the  asterisk,  and  thence  as  folloivs :) 
that  the  close  in  the  said  declaration  mentioned,  and  in 
which,  etc.,  now  is,  and  at  the  said  time  {or  "  several 
times")  when,  etc.,  was  the  close,  soil  and  freehold  of  the 
defendant;  wherefore  the  defendant,  at  the  said  lime  [or 
"several  times")  when,  etc.,  committed  the  several  sup- 
posed trespasses  in  the  said  declaration  mentioned,  in  the 
said  close  in  which,  etc.,  as  he  lawfully  might  for  the 
cause  aforesaid  :  And  this  the  defendant  is  ready  to  verify  ; 
wherefore   he  prays  judgment,  etc. 

• 
Where  one  of  two  defendants  justifies  as  the  servant  of 

the  other,  the  freeholder,  the  plea  should  allege  that  the 

close  was  "  the  close,  soil  and  freehold  of  the  said  C.  D.  ; 

(w)  II  East,  451 ;  12  Price,  369,  390. 

(x)  2  M.  &  W.  248;  9  Johns.  35,  331. 

00  16  Pick.  266. 

{z)  5  Taunt.  19S;  3  Term,  292,  296;  8  Co.  146. 

(a)  7  Taunt.  156;  2  Groenl.  Ev.,  sec.  62S. 


TRESPASS.  6oi 


Plea  of  liberum  toieinentum,  etc. 


wherefore  the  said  C.  D.  in  his  own  right,  and  the  said  E. 
F.  as  his  servant,  and  at  his  command,"  etc.,  committed 
the  supposed  trespasses,  etc. 

If  the  action  is  for  injuries  to  real  property  only,  there  is 
no  occasion  for  any  recital  in  the  commencement  of  the 
plea ;  but  otherwise  it  is  necessary  to  qualify  the  plea  in  its 
commencement,  by  reciting  the  trespasses  to  the  realty, 
to  which  trespasses  alone  the  plea  relates.  (See  the  re- 
marks, ante,  under  form  No.  272.)  In  this  case,  after  the 
averment  of  freehold,  the  language  of  the  plea  should  be, 
"wherefore  the  defendant,  at  the  said  time  when,  etc., 
committed  the  several  supposed  trespasses  in  the  introduc- 
tory part  of  this  flea  mentioned,"  etc. 

The  plea  of  liberum  tenementzun  (or,  as  it  is  frequently 
called,  the  "  common  bar,")  admits  that  the  plaintiff  w^as  in 
possession  of  the  close  described  in  the  declaration,  and 
that  the  defendant  did  the  acts  complained  of,  raising  onlv 
the  question  whether  the  close  described  is  the  defendant's 
freehold  or  not ;  (b)  and  his  title  must  be  proved,  either  by 
deed  or  other  documentary  evidence,  or  by  an  actual,  ad- 
verse and  exclusive  possession  for  twenty  years,  inasmuch 
as  under  this  issue  he  undertakes  to  show  a  title  in  himself, 
which  shall  do  aw^ay  the  presumptioa  arising  from  the 
plaintift^'s  possession.  (<:)  Proof  of  a  tenanc}'^  in  common 
with  the  plaintiff,  is  not  admissible  under  this  plea,  {d)  If 
the  defendant  succeeds  in  establishing  a  title  to  that  part  of 
the  close  on  which  the  trespass  was  committed,  he  is  enti- 
tled to  recover,  though  he  does  not  prove  a  title  to  the 
whole  close;  the  words  "the  close  in  w^hich,"  etc.,  consti- 
tuting a  divisible  allegation,  {e) 

Under  this  plea  any  estate  oi  freehold,  as  in  fee,  in  tail, 

{b)  I  B.  &  C.  4S9;  3  Ad.  &  El.  iSi ;  2  McCord,  126;  10  Ad.  &  El.  763. 
See  32  111.  173. 
(c)  7  M.  &  W.  593.     See  30  Miss.  .142  ;  15  Ind.  496. 
((/)  Gow.  20I ;  II  N.  H.  226.     See  14  Gray,  495. 
(<>)  8  M.  &  W.  3S1 ;  2  B.  &  C.  91S;  2  Greenl.  Ev.,  sees.  61S,  626. 


602  TRESPASS. 


Replication  to  plea  of  liberum  tenementum — New  assignment,  etc. 

or  for  life,  but  not  a  freehold  in  remainder  or  reversion, 
may  be  given  in  evidence.  {/) 

It  is  held  in  Illinois,  that  although  the  owner  in  fee  of 
the  land  is  kept  out  of  the  possession,  he  can  not  be  per- 
mitted to  enter  against  the  w^ill  of  the  occupant ;  and  that 
the  common-law  right  to  enter,  and  use  all  necessary  force  to 
obtain  the  possession  from  him  who  may  wrongfully  with- 
hold it,  has  been  taken  away  by  the  statute  of  forcible  entry 
and  detainer,  {g) 

The  common  bar  is  rarely  of  any  other  utility  than  to 
compel  a  nezv  assignment^  describing  the  close,  when  it 
has  not  been  particularly  described  in  the  declaration  ;  {Ji) 
though  the  plea  may  sometimes  be  useful  and  proper  for 
other  purposes.  (/)  In  regard  to  this  plea,  see  3  Chitty  on 
Pleading,  index,  title  liberum  tcncmcnttim,  and  Gould's 
Pleading,  cap.  6,  §§  91,  92,  93. 

JVo.  288.     Replication  to  -plea  of  liberum  tenementum, 

denying  it. 

i^As  in  No.  274,  ante,  to  the  asterisk,  and  thence  as  fol- 
lows {)  because  he  says,  that  the  said  close  in  which,  etc., 
is  not  noiv^  and  at  the  said  time  {or'-'-  several  times  ")  when, 
etc.,  was  not  the  close,  soil  and  freehold  of  the  defendant, 
in  manner  and  form  as  he  has  above  in  his  said  seco7id 
plea  alleged  :  And  this  the  plaintiff  prays  may  be  inquired 
of  by  the  country,  etc. 

No.  289.     Netv  assignment. 

{As  in  No.  274,  ante,  to  the  asterisk,  and  thence  as  fol- 
lows:)  because  he  says,  that  the  said  close  in  which,  etc., 
now  is,  and  ditXhe  said  time  (c>r  "  several  times")  when, 
etc.,  was  a  certain  close  in  the  county  aforesaid,  known  and 
described  as  {/lere  describe  the  land) ;  which  said  close 
now  is,  and  at  the  said  time  {or  "several  times")  when, 
etc.,  was  another  and  different  close  from  the  close  in  the 

(/)  I  Chit.  PI.  (11  Am.  ed.)  503. 

Ig)  41  111.  279;  4O  111.  261 ;  40  111.  506. 

Ui)  I  Chit.  PL,  (11  Am.  ed.)  503;  Gould's  PL,  c.  6,  sees.  91-93. 

(,/)  I  Chit.  PL  (11  Am.  ed.)  505;  3  Id.,  109S,  n. 


TRESPASS.  603 

Reference  to  other  forms. 


said  second  plea  of  the  defendant  mentioned,  and  therein 
alleged  to  be  the  close,  soil  and  freehold  of  the  defendant. 
And  this  the  plaintiff  is  ready  to  verify ;  wherefore,  inas- 
much as  the  defendant  has  not  answered  the  said  trespasses 
by  him  committed  in  the  said  close  in  which,  etc.,  above 
newly  assigned,  the  plaintiff  prays  judgment,  and  his  dam- 
ages on  occasion  of  the  committing  of  the  said  trespasser>, 
above  newly  assigned,  to  be  adjudged  to  him,  etc. 

To  the  plea  of  liberum  tenementum,  the  plaintiff  may 
reply,  according  to  the  facts,  in  either  of  four  ways  ;  Firsts 
if  the  close  has  been  so  minutely  described  in  the  declaration 
that  there  can  be  no  question  what  close  is  meant,  and 
the  plaintiff's  title  is  inconsistent  with  that  of  the  defendant, 
then  the  replication  should  deny  that  the  close  is  the  defend- 
ant's freehold,  and  should  conclude  to  the  country  ;  secondly^ 
if  the  plaintiff  derives  title  und"er  the  defendant,  then  the 
plaintiff,  confessing  the  defendant's  title,  must  reply  the 
lease,  or  some  other  title,  under  him,  concluding  with  a 
verification  ;  thii'dly^  if  the  plaintiff  neither  derives  title 
under  the  defendant,  nor  has  a  title  inconsistent  with  the 
defendant's,  he  ma}^  I'eply  that  before  the  defendant  had 
anything  in  the  premises,  another  person  was  seized,  and 
made  a  lease  to  another  person  under  whom  the  plaintiff 
claims,  stating  his  derivative  title,  without  either  expressly 
confessing  or  denying  the  defendant's  plea,  and  concluding 
with  a  verification  ;  ox ^  fourthly,  if  the  declaration  does  not 
specify  the  locus  in  quo,  and  there  is  any  reason  to  appre- 
hend that  the  defendant  has  any  land  in  the  same  county, 
the  plaintiff  must  new  assign,  setting  out  the  locus  in  quo 
with  more  particularity,  (y) 

The  plea  of  liberum  tenevievtiim  is  a  good  plea  to  an  action 
of  trespass  quare  claiisuni  fregit  in  Illinois,  {k) 

(J)  I  Chit.  PI.  (n  Am.  ed.)  595.  See  3  Chit.  PI.  1209,  n.,  1216;  Gould's 
PI.,  cap.  6,  sec.  93;  4  Johns.  150;  8  Wend.  477;  6  Watts,  516. 

{k)  115  111.  177;  108  111.  646;  51  111.  467;  67  111.  446;  68  111.  53;  94 
III.  55. 


6o4  EJECTMENT. 


When  the  action  lies,  etc. 


CHAPTER  XII. 

EJECTMENT. 

The  action  of  ejectment  is  the  one  commonly  used  to  try 
the  title  to  real  property.  Originally  an  action  of  trespass, 
and  personal,  it  has  been  greatly  modified,  partly  by  judi- 
cial contrivance,  and  partly,  in  later  times,  by  statutes  ;  and 
it  is  now  a  mixed  action,  for  the  recovery  of  land  and  dam- 
ages, the  latter,  however,  being  usually  merely  nominal. 
Its  history  is  curious,  and  well  worth}^  of  study,  as  afford- 
ing perhaps  the  most  remarkable  instance  of  the  adaptation 
of  form  to  new  exigencies  to  be  found  in  tlie  English  law. 
A  lucid  exposition  of  the  origin  of  the  action,  and  of  the 
modifications  it  had  undergone  up  to  his  time,  is  given  in 
Blackstone's  Commentaries,  {a) 

In  Illinois,  ejectment  is  said  to  be,  under  the  statute  regu- 
lating it,  a  real  action,  and  not,  even  technically,  an  action 
for  a  tort ;  and  it  is  held  that  the  death  of  a  sole  defendant 
does  not  abate  the  suit,  {b)  It  is  also  held,  however,  that 
where  the  statute  is  silent,  the  practice  and  rules  of  the 
common  law  are  to  govern,  (c) 

When  the  action  lies,  etc. — The  general  rule  is,  that 
ejectment  will  lie  only  for  real  propert}',  as  land,  or  some- 
thing annexed  to  land,  upon  which  an  entry  might  in  fact 
be  made,  and  of  which  the  sheriff  could  deliver  actual  pos- 
session,  (d)     It  is  therefore  not  in  general  sustainable  for 

(rt)  2  Bia.  Com.  19S-205.  See  i  Chit.  PL  (11  Am.  ed.)  iS7-i9'5;  .'  Green). 
Ev.,  sees.  303-337- 
{b)  18  111.  536. 

(c)  3  Gilm.  600. 

(d)  Ad.Eject.  16;  16  Johns.  i84;,B.N.  P.99;  2Yeates,32i;  3  Green,  19?.. 


EJECTMENr.  605 

When  the  action  lies,  etc. 

property  which  ir  legal  contemplation  is  not  tangible  ;  as 
for  common   in   gross,  or  other  incorporeal  hereditament; 
or  for  a  water-course — though  it  will  lie  for  the  ground  over 
which  the  water  passes.  (<?)      Nor  can  the  action  be  sus 
tained  for  a  movable  chattel,  such  as  a  stall,    (y) 

With  respect  to  the  title,  a  person  having  the  right  of 
entry,  whetlier  his  title  is  in  fee,  for  life,  or  for  years,  may 
support  an  action  of  ejectment ;  bu'.  the  right  of  possession 
must  be  of  some  duration,  and  exclusive,  and  therefore 
ejectment  can  not  be  supported  where  one  has  merely  a 
license  to  use  land,  etc.  (g-) 

If  one  tenant  in  common  evicts  his  co-tenant,  ejectment 
may  be  sustained  by  the  latter  ;  (/^)  but  in  such  case  it  must 
be  shown  that  the  defendant  actuall}^  ousted  the  plaintiff, 
or  did  some  other  act  amounting  to  a  total  denial  of  his 
right,  (i) 

After  breach  of  the  condition  of  a  mortgage,  the  mort- 
gagee may  maintain  ejectment,  (j)  And  he  may  do  so 
before  breach,  as  it  is  held  by  the  English  courts,  and  in 
Illinois,  and  some  other  states  of  the  Union  ;  (^)  though  the 
contrar}'  doctrine  is  held  b}^  some  courts.  (/) 

The  mortgagee  may  maintain  ejectment  to  recover  the 
mortgaged  property,  proceed  in  chancery  to  foreclose  the 
equity  of  redemption,  and  sue  at  law  to  recover  the  amount 
of  the  debt ;  and  he  may  have  all  these  actions  at  the  same 
time,  (vi) 

Where  a  person  enters  into  possession  of  premises  under 
a  contract  of  purchase,  and  fails  to  comply  with  the  terms 

(e)  Yelv.  143 ;  Ad.  Eject.  iS,  20. 

(/)  I  Car.  &  P.  123.     See  1  Chit.  PI.  (11  Am.  ed.)  1S7,  e^  se^. 

iff)  I  Chit.  PI.  (11  Am.  ed.)  189;  2  East,  190;  11  East,  345. 

(k)  2  Ohio,  no;  7  Cranch,  456;  12  Wend    494,  562. 

(i)  Rev.  Stat.  (1877)  439;  l  Chit.  PI.  (ii  Am.  ed.)  igr. 

(/)  2  O'uio,  223.  See  26  111.  9  ;  3  Scam.  201  ;  23  111.  33  ;  30  111.  224;  41 
111.516.  See  also  31  111.  439;  84  111.  102;  94  111.  328;  n8  111.  32;  115  III. 
570. 

[k)  26  111.  and  cases  there  cited;  7  Blackf.  210.     See  83  111.  109. 

(/)  2  Cow.  145;   II  Wend.  533;  19  Johns.  325. 
.     (/«)  T.  Scam.  201 ;  23  111.  33  ;  26  111.  9;  115  111.  461. 


6o6  EJECTMENT. 


When  the  action  lies,  etc. 


of  the  purchase,  the  vendor  may  treat  the  contract  as  re- 
scinded, and  regain  the  possession  by  this  action  ;  {n)  but 
not  until  after  notice  to  quit,  or  a  demand  of  possession,  [o) 
unless  there  has  been  some  act  or  omission  on  the  part 
of  the  purchaser  which  amounts  to  a  repudiation  of  the 
contract.  (^) 

An  equitable  title  ^^ill  not  sustain  ejectment,  {q)  nor  will 
it  avail  as  a  defense  against  the  legal  title,  {r) 

In  this  action,  the  plaintiff' must  show  himself  entitled  to 
the  possession  on  the  day  laid  in  the  declaration  ;  a  deed 
made  after  that  time  can  not  aid  him.  (5)  And  he  must 
rely  on  the  strength  of  his  own  title,  and  not  on  the  weak- 
ness of  that  of  the  defendant.  (/)  A  legal  subsisting  title 
outstanding  in  a  third  person,  will  defeat  a  recovery;  [u) 
but  a  mortgage,  even  after  condition  broken,  does  not  con- 
stitute an  absolute  outstanding  title,  of  which  a  stranger 
can  take  advantage,  {v)  It  is  held  that,  under  the  statute 
of  Illinois,  a  conveyance  made  by  the  plaintiff  during  the 
pendency  of  the  suit  does  not  affect  his  right  of  recovery ; 
and  that  in  such  case  the  benefit  of  the  recovery  inures  to 
his  grantee,  {w)  And  a  person  entering  under  the  defend- 
ant, pending  the  suit,  takes  the  land  subject  to  whatever 
judgment  may  be  rendered  :  but  where  a  landlord  has  re- 
sumed possession,  pending  a  suit  in  ejectment  against  his 
tenant,  and  the  landlord  has  received  no  notice  of  the  suit, 
and  is  chargeable  with  no  fault  or  laches,  he  will  not  be 

(«)  32  111.  172;  41  111.  461.  See  119  III.  493. 

{0)   14  III.  91 ;  13  East,  210;  I  B.  &  C.  448.  See  36  HI.  18. 

(/)  14  111.  91.  See  II  111.  547. 

iq)  118  111.  32;  70  111.  286;  25  111.  537;  50  111.  202;  54  111.  323;  88  111.  24; 
'  100  111.  549;  94  111.  446. 

(r)  41  111.  148;  31  111.  468.  See  87  111.  535. 

(s)  II  111  547;  13  111.  251;  83  111.  109.  See  25  111.  537  ;  44  111.  50. 

{()  115  111.  540;  35  111.  106;  39  111.  91  ;  45  111.  318;  89  111.  331  ;  69  111. 
632:94111.115,433;  109  111.412;  99  111.  426. 

(«)  23  111.  72,  75;  4  Gilm.  159;  15  111.  540;  39  111.  91  j  54  111.  79;  89  111. 
331 ;  93  III.  480;  94  111.  400;  118  111.  600. 

{v)   25  111.  277;  94  111.  328;  99  111.  372. 

{w)   44  111.  50 ;  50  111.  137  ;  99  111.  312; 


EJECTMENT.  607 

When  the  action  lies,  etc. 

evicted  by  a  writ  of  possession  issued  on  a  judgment  against 
the  tenant,  but  the  writ  will  on  motion  be  stayed,  and  the 
landlord  let  in  to  defend  the  existing  suit  on  the  merits,  (x) 

The  statute  of  Illinois,  in  force  July  i,  1872,  provides 
that  the  action  of  ejectment  may  be  brought  in  the  cases 
theretofore  accustomed,  subject  to  the  provisions  of  the  act ; 
and  that  it  may  also  be  brought  in  the  same  cases  in  which 
a  writ  of  right  may  be  brought  by  law,  to  recover  lands, 
tenements  or  hereditaments,  and  by  any  person  claiming 
an  estate  therein,  in  fee,  for  life,  or  for  years,  either  as 
heir,  devisee  or  purchaser,  (y) 

In  regard  to  the  action  of  ejectment  b}'  a  landlord  against 
his  tenant,  for  non-payment  of  rent,  the  statute  of  Illinois, 
concerning  landlord  and  tenant,  provides  as  follows  :  "In 
all  cases  between  landlord  and  tenant,  where  one-half 
year's  rent  shall  be  in  arrear  and  unpaid,  and  the  landlord 
or  lessor,  to  whom  such  rent  is  due,  has  right  by  law  to  re- 
enter for  non-payment  thereof,  such  landlord  or  lessor 
may,  without  any  formal  demand  or  re-entry,  commence 
an  action  of  ejectment  for  the  recovery  of  the  demised 
premises.  And  in  case  judgment  be  given  for  the  plaintiff 
in  such  action  of  ejectment,  and  the  writ  of  possession 
thereon  be  executed  thereon,  before  the  rent  in  arrear  and 
costs  of  suit  be  paid,  then  the  lease  of  such  lands  shall 
cease  and  be  determined,  unless  such  lessee  or  lessees 
shall,  by  writ  of  error,  reverse  the  said  judgment,  or  shall 
by  bill,  filed  in  chancer3^  within  six  months  after  the  ren- 
dition of  such  judgment,  obtain  relief  from  the  same  :  Pro- 
vided, that  any  such  tenant  or  tenants  may,  at  any  time 
before  final  judgment  on  said  ejectment,  pay  or  tender  to 
the  landlord  or  lessor  of  the  premises  the  amount  of  the 
rent  in  arrear,  and  costs  of  suit,  and  the  proceedings  on 
such  ejectment  shall  thereupon  be  discontinued."  (z) 

(x)  47  111.  142;  48  111.  160.     See  22  Til,  442;  3  Gilm.  600. 
{y)  I  Starr  &  Curtis'  An.  Stat.    980;  Rev.  Stat.  (1877)  436. 
(s)   2  Starr  &  Curtis'  An.  Stat.  1492;  Rev.  Stat.  (1877)  627;   10  Bradw.  626; 
118  111.  605;  119  111.  22. 


6o8  EJECTMENT. 


By  whom  may  be  maintained. — Against  whom  to  be  brought,  etc. 


JV/io  may  maintain  the  action. — The  statute  of  Illinois, 
concerning  ejectment,  provides  that  no  person  shall  recover 
in  this  action  unless  he  has,  at  the  time  of  the  commence- 
ment of  the  suit,  a  valid  subsisting  interest  in  the  premises 
claimed,  and  a  right  to  recover  the  same,  or  to  recover  the 
possession  thereof,  or  of  some  share,  interest  or  portion 
thereof,  to  be  proved  and  established  at  the  trial,  {a) 

This  statute  further  provides,  that  an}'  two  or  more  per- 
sons claiming  the  same  premises  as  joint  tenants,  tenants 
in  common  or  co-parceners,  may  join  in  a  suit  for  the  re- 
covery thereof,  or  any  one  may  sue  alone  for  his  share,  {b) 

The  corporate  authorities  of  a  city  m^y  maintain  ejectment 
against  an  intruder  upon  the  public  streets,  {x) 

Against  zvhom  to  he  brotigkt,  etc. — X^e  statute  of  Illi- 
nois, above  mentioned,  further  provides,  that  if  the  prem- 
ises for  which  the  action  is  brought  are  actually  occupied 
by  any  person,  such  actual  occupant  shall  be  named  de- 
fendant in  the  suit,  and  all  other  persons  claiming  title  or 
interest  to  or  in  the  same,  may  also  be  joined  as  defendants. 
If  the  premises  are  not  occupied,  the  action  is  to  be  brought 
against  some  person  exercising  acts  of  ownership  on  the 
premises  claimed,  or  claiming  title  thereto,  or  some  interest 
therein,  at  the  commencement  of  the  suit,  [c) 

The  statute  also  provides,  that  "if  the  action  is  against 
several,  and  the  plaintiff  is  entitled  to  recover,  he  shall  re- 
cover against  all  who  are  in  joint  possession  or  claim  the 
title,  whether  the}'  shall  have  pleaded  separately  or  jointly." 
And  further,  that  "when  the  action  is  against  several  de- 
fendants, if  it  appear  on  the  trial  that  any  of  them  occupy 
distinct  parcels  in  severalty  or  jointly,  the  plaintiff  shall 
elect,  at  the  trial,  against  which  he  will  proceed  ;  which 
election  shall  be  made  before  the  testimony  in  the  cause 

(x)  69  111.  318. 

{a)  I  Starr  &  Curtis'  An.  Stat.  980;  Rev.  Stat.  (1S77)  436;  44  111.  50.  See 
II  111.  547;   13  111.  251;  25  111.  537. 

{b)  I  Starr  &  Curtis'  An.  Stat.  981  ;  Rev.  St.it.  (1S77)  437.  See  I  Chit.  PI. 
(n  Am.  ed.)  62,  65;   108  111.  591. 

{c)  I  Starr  &  Curtis' An.  Stat.  9S1-982;    Rev.  Stat.   (1S77)  43S  ;  88  111.  66. 


EJECTMENT.  609 


i^^ommencement  of  the  action. 


shall  be  deemed  to  be  closed;  and  the  suit  shall  be  dis- 
missed as  to  the  defendants  not  so  proceeded  against,  {d) 

It  is  not  necessary,  in  ejectment,  to  make  any  other  per- 
son than  the  occupant"  a  defendant.  A  recovery  against 
him  binds  all  persons  in  privity,  [e)  But  a  person  in 
possession  merely  as  a  servant  or  employe  of  the  person 
claiming  an  adverse  title,  is  not  an  occupant  within  the 
meaning  of  the  statute.  {/) 

The  same  statute  further  provides,  that  every  tenant  who 
shall  at  any  time  be  sued  in  ejectment,  by  any  person 
other  than  his  landlord,  shall  forthwith  give  notice  thereof 
to  his  landlord,  or  to 'his  agent  or  attorney,  under  the  pen- 
alty of  forfeiting  two  years'  rent  of  the  premises  in  question, 
or  the  value  thereof,  to  be  recovered  by  such  landlord  by 
action  of  debt,  in  any  court  having  cognizance  thereof. " 
The  landlord,  whose  tenant  is  sued  in  ejectment,  may,  upon 
his  own  motion  or  that  of  the  plaintiff,  be  made  defendant 
in  such  action,  upon  such  terms  as  may  be  ordered  by  the 
court,  [g) 

The  landlord  may  appear  and  defend  in  the  name  of  the 
tenant,  if  he  will  indemnify  him  against  costs ;  and  the 
name  of  the  landlord  may  be  entered  on  the  record  2lq  de- 
fendant instead  of  the  tenant ;  [h)  but  it  has  been  held  that 
the  landlord  could  not  be  allo\ved  to  substitute  his  own 
name  as  defendant,  in  place  of  that  of  the  tenant,  wi  hout 
the  plaintift^'s  consent.  (/) 

COMME]^CEMENT    OF    THE    ACTION. 

In  Illinois,  the  action  of  ejectment  is  commenced  b^  the 
issuing  of  a   summons,  which  is  of  like  form  with,    ^nd 

(d)  I  Starr  &  Curtis'  An.  Stat.  987  ;  Rev.  Stat.  (1877)  439, 

(e)  22  111.  442. 

(/)  41  111.  148.     But  see  i  Chit.  PI.  (ll  Am.  ed.)  191. 

{g\  I  Starr  &  Curtis'  An.  Stat.  984;  Rev.  Slat.  (1877)  438  •    57  111.  371. 

(/«)  2  Gilm.  271 ;  3  Gilm.  600.     See  Rev.  Stat.  (1877)  438. 

{i)   13  III.  716;  65  U.  S.  186;  3  S.  &  R.  130;    I  Cow.  134. 

39 


6io  EJECTMENT. 


Proecifc — The  declaration. 


tested,  served  and  returned  in  the  same  manner  as  sum- 
monses in  other  actions  at  law.  (/)  A  -prcBci^pe  may  be 
filed,  in  the  following  form  : 

PR-(ECiPE  for  stmimons. 

In  the Court  of  the  county  of ,  in  the  State  of 

Illinois. 

A.  B.  ^ 
"js.     >  Ejectment. — Damages  $ . 

CD.) 

The  clerk  of  the  said  court  will  issue  a  summons,  as 
above,  directed  to  the  sheriff  of  the  county  of ,  and  re- 
turnable to  the term,  i8 . 

{Date.)  E.  F.  Attorney,  for  Plaintiff. 

^  To ,  Clerk,  etc. 

The  declaration. — The  time  for  filing  the  declaration 
in  ejectment,  under  the  present  statute  of  Illinois,  is  the 
same  as  in  other  actions  at  law,  that  is  to  say,  ten  days  be- 
fore the  term  to  which  the  summons  is  made  returnable, 
etc.  {k) 

The  statute  further  provides,  in  regard  to  the  declaration, 
as  follows  :  "It  shall  be  sufficient  for  the  plaintiff  to  aver 
in  his  declaration,  that  (on  some  day  therein  to  be  speci- 
fied, and  which  shall  be  after  his  title  accrued,)  he  was 
possessed  of  the  premises  in  question,  (describing  them  as 
hereinafter  provided,)  and  being  so  possessed  thereof,  that 
the  defendant  afterwards  (on  some  day  to  be  stated,)  en- 
tered into  such  premises,  and  that  he  unlawfully  withholds 
from  the  plaintiff  the  possession  thereof,  to  his  damage  any 
nominal  sum  the  plaintiff  shall  think  proper  to  state. 

"The  premises  so  claimed  shall  be  described  in  suo. 
declaration  with  convenient  certainty,  so  that,  from  such 
description,  possession  of  the  premises  claimed  may  be  de- 
livered. If  such  plaintiff  claims  any  undivided  share  or 
interest  in  any  premises,  he  shall  state  the  same  particu- 

(/)  Rev.  Stat.  (1874)  444;  Rev.  Stat.  (1877)  437- 
(i)  -lb 


EJECTMENT.  6ii 


Declaration  in  ejectment. 


larly  in  such  declaration.  But  the  plaintiff,  in  any  case, 
ma}^  recover  such, part,  share  or  interest  in  the  premises  as 
he  shall  appear  on  the  trial  to  be  entitled  to.  (/) 

"  In  every  case,  the  plaintiff  shall  state  whether  he 
claims  in  fee,  or  whether  he  claims  for  his  own  life,  or  the 
life  of  another,  or  for  a  term  of  years,  specifying  such  life 
or  the  duration  of  such  term." 

"  The  declaration  may  contain  several  counts,  and  sev- 
eral parties  may  be  named  as  plaintiffs,  jointly  in  one 
count  and  separately  in  others."  {vi) 

As  the  action  of  ejectment  is  local,  it  must  appear  from 
the  declaration  that  the  land  is  situate  in  the  county  where 
the  suit  is  brought,  or  there  will  be  a  want  of  jurisdiction  in 
the  court,  [n) 

No.  290.     Declaration  in  ejectment. 

In  the Circuit  Court. 

Term,  iS — . 

State  of  Illinois, 


County  of ,       >  set.     A.  B.,  plaintiff,  by  E.  F.,  his 

attorney,  complains  of  C.  D.,  defendant,  of  a  plea  of  eject- 
ment :     For  that  the  plaintiff,  on  the day  of  ,  in 

the  year  18 — ,  was  possessed  of  a  certain  parcel  of  land, 
with  the  appurtenances,  lying  in  the  county  aforesaid,  to 
wit,  (^Jiere  describe  the  land;)  which  said  tenements  the 
plainriff  claims  in  fee:  And  the  plaintiff  being  so  thereof 
possessed,  the  defendant  afterwards,  to  wit,  on,  etc.,  en- 
tered into  the  said  tenements,  and  now  unlawfull}^  with- 
holds  from    the    plaintiff  the    possession    thereof;    to    the 

damage  of  the  plaintiff  of  dollars,  and  therefore  he 

brings  his  suit,  etc. 

If  the  declaration  or  count  is  for  an  undivided  interest, 
say,  "was  possessed  of  the  one  undivided  half  part  of  a 
certain  parcel  of  land,"  etc.     And  if  a  less  estate  than  the 


(/)  See  Wat.  Ad.  Eject.  233;  76  111.  536;  108  111.  591. 

(w)  I  Starr  &  Curtis'  An.  Stat.  983;  Rev.  Stat.  (1877)  437;    12  111.  420;    15 

111.  178,  540;  32  111.  489  ;  41  111.  228;  47  111.  25;  49  111.  153. 
(«)   19  111.  47. 


6i2  EJECTMENT. 


Declaration  hy  several  plaintiffs. 


fee  is  claimed,  say,   "which  said  tenements  the  plaintitT 
claims  for  the  term  of  his  life,"  or  "for  the  term  of  the  life 

of  one  J.  K..,  who  is  still  living,"  or  "  for  the  term  of 

3^ears  from  the day  of ,"  etc. 

JVo.  291.     Declaration  by  several  persons  ^  naming  them  as 
■plaintiffs  jointly  in  one  count  and  separately  in  others. 

{Title  0/ court,  etc.)  A.  B.,  G.  H.  and  J.  K.,  plaintiffs, 
by  E.  F.,  their  attorney-,  complain  of  C.  D.,  defendant,  of 
a  plea  of  ejectment :  For  that  the  plaintiffs,  on,  etc.,  were 
possessed  of  a  certain  parcel  of  land,  with  the  appurte- 
nances, lying  in  the  county  aforesaid,  to  wit,  {here  describe 
the  land;)  which  said  tenements  the  plaintiffs  claim  in  fee  : 
And  the  plaintiffs  being  so  thereof  possessed,  the  defendant 
afterwards,  to  wit,  on,  etc.,  entered  into  the  said  tenements, 
and  now  unlawfully  withholds  from  the  plaintiffs  the  pos- 
session of  the  same. 

{Second  count.)  And  also  for  that  the  said  A  B.,  on,. 
etc. ,  was  possessed  of  the  one  undivided  third  part  of  a 
certain  other  parcel  of  land,  with  the  appurtenances,  lying 
in  the  county  aforesaid,  to  wit,  {here  describe  the  land;) 
which  last-mentioned  tenements  the  said  A.  B.  claims  in 
fee  :  And  he  being  so  thereof  possessed,  the  defendant 
afterwards,  to  wit,  on,  etc.,  entered  into  the  last-mentioned 
tenements,  and  now  unlawfully  withholds  from  the  said 
A.  B.  the  possession  of  the  same. 

{Third  count.)  And  also  for  that  the  said  G.  H.,  on, 
etc.,  was  possessed  {and  so  on,  as  in  the  second  count,  suh- 
stiiuting  G.  H.  for  A.  B.  throughout.) 

{Fourth  count.)  And  also  for  that  the  said  J.  K.,  on, 
etc.,  was  possessed  {and  so  on,  as  in  the  second  count,  sub- 
stituting f.  K.for  A.  B.  throughout.) 

{Conclusion.)     Wherefore  the  plaintiffs  say  that  they  are 

injured,  and  have  sustained  damage  to  the  ampu,nt  of 

dollars,  and  therefore  they  bring  suit,  etc..-/.,^ 

See  the  section  of  the  statute  above  quoted,  allowing 
several  counts,  by  different  plaintiffs.  Before  the  fiction  of 
a  nominal  plaintiff  was  abolished,  the  declaration  might  in- 
clude several  counts,  on  the  demises  of  different  persons.  {0) 

(o)  1  Chit.  PI.  [x\  Am.ed.^  187. 


EJECTMENT.  613 


Defenses  to  the  action. — Plea  of  "not  guilty,"  etc. 

The  27th  section  of  the  Illinois  ejectment-act  provides, 
that  "it  shall  not  be  an  objection  to  a  recovery,  in  any  ac- 
tion of  ejectment,  that  any  one  of  several  plaintiffs  do  not 
prove  any  interest  in  the  premises  claimed,  but  those  en- 
titled shall  have  judgment,  according  to  their  rights,  for  the 
whole  or  such  part  or  portion  as  he  or  they  might  have 
recovered  if  he  or  they  had  sued  in  his  or  their  name  or 
names  only."  {j)) 


DEFENSES   TO   THE   ACTION. 

The  statute  of  Illinois  provides  as  follows:  "The  de- 
fendant may  demur  to  the  declaration,  as  in  personal 
actions,  or  he  shall  plead  the  general  issue,  which  shall  be, 
that  the  defendant  is  not  guilty  of  unlawfully  withholding 
the  premises  claimed  by  the  plaintiff,  as  alleged  in  the 
declaration ;  and  the  filing  of  such  plea  or  demurrer  shall 
be  deemed  an  appearance  in  the  cause  ;  and  upon  such 
plea  the  defendant  may  give  in  evidence  any  matter  that 
may  tend  to  defeat  the  plaintifl^'s  action,  except  as  here- 
inafter provided.  The  plea  of  not  guilty  shall  not  put  in 
issue  the  possession  of  the  premises  by  the  defendant,  or 
that  he  claims  title  or  interest  in  the  premises."  {q)  The 
plea  for  which  the  statute  provides  only  purports  to  deny 
the  unlawful  withholding  of  the  premises. 

In  the  absence  of  any  statute  on  the  subject,  the  real 
plaintiff  must  prove,  on  the  general  issue,  ist,  that  he  had 
the  legal  estate  in  the  premises,  at  the  time  of  the  demise 
laid  in  the  declaration  ;  2dly,  that  he  also  had  the  riglit 
of  entry ;  and  sdly,  that  the  defendant,  or  some  one  claim- 
ing under  him,  was  in  possession  of  the  premises  at  the 
time  when  the  suit  was  commenced,  [r) 

(/)  I  Starr  &  Curtis'  An.  Stat.  987;  Rev.  Stat.  (1877)438. 
((/)  lb. ;  106  III.  45  ;   no  111.  16,  595  ;  92  111.  279,  377. 
[r)  2  Greenl.  Ev.  Sec.  304;  Tilling.  Ad.  Eject.  247. 


6i4  EJECTMENT. 

Plea,  not  guilty — Claim  for  mesne  profits. 

No.  292.     Pica — not  guilty. 

In  the Court. 

Term,  18—. 


Ejectment. 

And  the  defendant,  by  G.  H.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  he  is  not  guihy  of  unlawfully  withholding  the 
tenements  in  the  said  declaration  mentioned,  or  any  part 
thereof,  in  manner  and  form  as  the  plaintiff  has  above 
thereof  complained  against  him  :  And  of  this  the  defend- 
ant puts  himself  upon  the  country,  etc. 

The  statute  of  Illinois  further  provides,  that  "it  shall  not 
be  necessar}'^  for  the  plaintiff  to  prove  that  the  defendant 
was  in  possession  of  the  premises,  or  claims  title  or  interest 
therein,  at  the  time  of  bringing  the  suit,  or  that  the  plaintiff 
demanded  the  possession  of  the  premises,  unless  the  de- 
fendant shall  deny  that  he  was -in  such  possession,  or  claims 
title  or  interest  therein,  or  that  demand  of  possession  was 
made,  by  special  plea,  verified  by  affidavit."  (5) 

Claim /"or  mesne  profits. — On  this  subject,  the  statute  of 
Illinois  provides  as  follows  :  ' '  Instead  of  the  action  of 
trespass  for  mesne  profits,  the  plaintiff  seeking  to  recover 
such  damages,  shall,  within  one  year  after  the  entering  of 
the  judgment,  make  and  file  a  suggestion  of  such  claim, 
which  shall  be  entered,  with  the  proceedings  thereon,  upon 
the  record  of  such  judgment,  or  be  attached  thereto,  as  a 
continuance  of  the  same. 

"Such  suggestion  shall  be  substantially  in  the  same  form 
as  is  now  in  use  for  a  declaration  in  an  action  of  assumpsit 
for  use  and  occupation,  and  the  same  rules  of  pleading 
thereto  shall  be  observed  as  upon  declarations  in  personal 
actions."  (^) 

{s)  I  Starr  &  Curtis'  An.  Stat.  986;  Rev.  Stat.  (1877)  438  !  85  HI.  149)  ^^ 
111.  66;  no  111.  16;   119  111.  606. 

{t)  lb.  992  ;    Rev.  btat.  (1877)  440;  63  111,  230. 


EJECTMENT.  6i; 


Suggestion  of  claim  for  mesne  profits — Defenses  to  claim  for  mesne  profits. 

No.  293.     Suggestion  of  claim  for  mesne  -prGJits, 
In  the Court. 


Term,  18—. 


A.  B.  ^ 

vs.     >  Ejectment.     Claim  for  mesne  profits. 

•   C.  D.  3      And  now  on  this day  of,  etc.,  comes  the 

plaintiff,  by  E.  F.,  his  attorney,  and,  according  to  the  form 
of  the  statute  in  such  case  made  and  provided,  suggests  to 
the  court  here,  that  the  defendant,  on,  etc.,  in,  etc.,  was 

indebted  to  the  plaintiff  in  the  sum  of  dollars,  for  the 

use  and  occupation  of  the  tenements  above  in  the  said  dec- 
laration and  judgment  mentioned,  by  the  defendant  held, 
used  and  occupied,  at  his  request,  for  a  long  space  of  time 
before  then  elapsed ;  and  being  so  indebted,  the  defendant, 
in  consideration  thereof,  on  the  day  last  aforesaid  there 
promised  the  plaintiff  to  pay  him  the  said  sum  of  money, 
on  request :  Yet  the  defendant,  though  requested,  has  not 
paid  to  the  plaintiff'  the  said  sum  of  money,  or  any  part 
thereof,  but  refuses  so  to  do  ;  to  the  damage  of  the  plaintiff 
of dollars,  etc. 

Upon  the  filing  of  such  suggestion,  the  defendant  is  to 
be  summoned  in  the  same  manner  as  in  an  orifjinal  ac- 
tion.  {u) 

Defenses  to  the  claim  for  mesne  ^rofits^  etc. — The  stat- 
ute above  mentioned  further  provides  as  follows:  "The 
defendant  may  plead  the  general  issue  of  non  assumpsit , 
and,  under  such  plea,  may  give  notice  of,  or  may  plead 
specially,  any  matter  in  bar  of  such  claim,  except  such  as 
were  or  might  have  been  controverted  in  such  action  of 
ejectment ;  but  he  may  plead  or  give  notice  of  a  recovery 
by  such  defendant,  or  any  other  person,  of  the  same  prem- 
ises, or  of  part  thereof,  subsequent  to  the  verdict  of  such 
action  of  ejectment,  in  bar  or  in  mitigation  of  the  damages 
claimed  by  the  plaintiff. 

"If  any  issue  of  fact  be  joined  on  such  suggestion,   it 


(«)  1  Starr  &  Curtis'  An.  Stat.  992  ;    Rev.  Stat.  (1S77)  44°;  loS  III.  464. 


6i6  EJECTMENT. 


Plea  of  non  assumpsit  to  suggestion — Forms. 


shall  be  tried  as  in  other  cases ;  and  if  such  issue  be  found 
for  the  plaintiff,  the  same  jury  shall  assess  his  damages  to 
the  amount  of  the  mesne  profits  received  by  the  defendant 
since  he  entered  into  possession  of  the  premises,  subject  to 
the  restrictions  hereinafter  contained. 

"  On  the  trial  of  such  issue,  the  plaintiff  shall  be  required 
to  establish,  and  the  defendant  may  controvert,  the  time 
when  such  defendant  entered  into  the  possession  of  the 
premises,  the  time  during  which  he  enjoyed  the  mesne 
profits  thereof,  and  the  value  of  such  profits ;  and  the  rec- 
ord of  the  recovery  in  the  action  of  ejectment  shall  not  be 
evidence  of  such  time.  On  such  trial,  the  defendant  shall 
have  the  same  right  to  set  off  any  improvements  made  on 
the  premises,  to  the  amount  of  the  plaintiff's  claim,  as  is 
now  or  shall  hereafter  be  allowed  by  law  ;  and  in  estimating 
the  plaintiff's  damages,  the  value  of  the  use  by  the  defend- 
ant of  any  improvements  made  by  him  shall  not  be  allowed 
to  the  plaintiff." (■t^) 


iVo.  294.     Plea  a/No's  assumpsit,  ^0  suggestion  of  claim 
for  mesne  -projits. 

In  the Court. 

Term,  18 — . 

C.  D.  ^ 
ats.    >  Ejectment.     Claim  for  mesne  profits. 

A.  B.  3  And  the  defendant,  by  G.  H.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  when,  etc.,  and 
says  that  he  did  not  promise  in  manner  and  form  as  the 
plaintiff  has  above  in  his  said  suggestion  in  that  behalf 
alleged  against  him  :  And  of  this  the  defendant  puts  him- 
self upon  the  country,  etc. 

For  a  form  of  notice  of  special  matter,  and  forms  of 
special  pleas,  see  the  precedents  in  assumpsit,  ante,  chap- 
ter III. 

The  proceedings  in  the  action  of  ejectment,  in  Illinois 

{v)   I  Starr  &  Curtis'  An.  Stat.  992;  Rev.  Stat.  (1877)  441. 


EJECTMENT.  617 


Remarks. 


and  in  most  of  the  other  states,  are  in  a  great  measure  reg- 
ulated by  statute  ;  and  it  is  not  deemed  necessary  to  occupy 
much  space  with  the  subject  in  this  work.  For  a  full  un- 
derstanding of  the  nature  of  the  action,  and  the  general 
principles  of  law  governing  it,  the  text  books,  where  the 
subject  is  specially  treated,  should  be  consulted,  {-w) 

Neiv  trial — Under  the  statute. — The  statute  allows  a  new 
trial  at  any  time  within  one  year  after  judgment,  either  upon 
default,  or  verdict  in  the  action  of  ejectment,  upon  payment 
of  costs  ;  and  the  p^rty  against  whom  it  is  rendered  shall  be 
entitled  to  have  the  judgment  vacated  and  a  new  trial  granted 
in  the  cause,  {x) 

A  first  new  trial  under  the  statute  is  the  right  of  an  unsuc- 
cessful party  on  a  compliance  with  the  statute,  without  show- 
ing cause.  The  court  has  no  discretion  to  refuse  or  allow 
it.  (j) 

Where  a  plaintiff  in  ejectment,  after  a  judgment  against 
him,  obtains  a  new  trial  under  the  statute,  and  by  amend- 
ment makes  a  new  party  defendant,  and  before  his  second 
trial  dismisses  his  suit,  the  former  judgment  is  no  bar  to  a 
second  action  brought  by  him  against  such  new  defendant. 
The  effect  of  the  new  trial  is  to  vacate  and  render  wholly 
inoperative  the  prior  judgment  and  leaves  the  parties  as  they 
stood  before  the  trial,  except  that  the  plaintiff  cannot  claim 
a  second  new  trial  under  the  statute  in  the  same  suit,  {z) 

{w)  See  Adams  on  Eject. ;  2  Cooley's  Blackstone,  198-206;  2  Greenl.  Ev., 
Sees.  303-337, 

{x)  See  I  Starr  &  Curtis'  An.  Stat.  989;  Rev.  Stat.  (1S77)  439;  63  111.  262; 
107  111.  440;  103  111.  58;  104  111.  520;  121  111.  30. 

{y)  I  Gilm.  i6oj  4  Gilm.  129;  14  111.  152;  35  111,  387;  63  111.  262;  103 
111.  58. 

(2)   106  III.  45;  22  111.  121. 


6i8  ATTACHMENT. 


Nature  of  the  action,  etc. 


CHAPTER  Xni. 


ATTACHMENT. 


The  writ  of  attachment,  in  civil  actions  at  law,  is  a  spe- 
cies of  process  upon  which  the  property  of  a  defendant 
may  be  seized,  and  held  to  satisfy  the  judgment  which  the 
plaintiff  may  obtain.  The  proceeding  is  wholly  statutory, 
and  the  enactments  on  the  subject,  in  the  various  states, 
differ  materially  in  their  provisions.  It  is  only  proposed, 
in  this  chapter,  to  consider  this  remedy  as  it  exists  under 
the  laws  of  Illinois. 

Nature  of  the  proceedings  etc. — The  proceeding  by  at- 
tachment is  in  rem;  and  unless  there  has  been  a  seizure 
of  property  of  the  defendant,  or  a  garnishee  has  been 
summoned,  or  there  has  been  actual  service  on  the  defend- 
ant, or  an  appearance  entered  by  him,  the  court  has  no 
jurisdiction  to  proceed  to  judgment,  {a) 

In  an  action  commenced  by  attacfiment,  where  there  has 
been  constructive  notice  only,  by  publication,  if  the  de- 
fendant appears  and  pleads  to  the  action,  the  suit  thereby 
becomes  a  proceeding  in  ■personam,  and  a  judgment  in 
■personam  may  be  rendered  against  the  defendant.  (<5) 

"When  the  defendant  has  been  served  with  the  writ,  or 
appears  to  the  action,  the  judgment  shall  have  the  same 
force  and  effect  as  in  suits  commenced  by  summons ;  and 
execution  may  issue  thereon  not  only  against  the  property 
attached,  but  the  other  property  of  the  defendant."  {c) 

[a)  I  Gilm.  l88;  60  III.  528;  54  111.  523;  2  Gilm.  46S  ;  77  111.  618;  7^ 
111.  81. 

(6)  21  111.  379;  I  Gilm.  531,  187;  65  111.  336. 

(<:)  I  Starr  &  Curtis'  An.  Stat.  324;  Rev.  Stat.  (1877)  151;  I  Gilm.  531 ;  5 
Gilm.  80;  33  111,  379. 


ATTACHMENT.  619 


In  what  cases  it  lies,  etc. 


The  benefit  of  the  remedy  is  not  confined  to  any  partic- 
ular form  of  action.  Any  creditor  is  authorized,  under 
certain  circumstances,  to  sue  out  an  attachment ;  and,  an 
action  of  account  maybe  commenced  in  this  manner,  (d) 

A  creditor  may  proceed  by  attachment  and  by  petition 
for  a  mechanic's  lien,  as  concurrent  remedies,  (e) 

Proceedings  by  attachment,  being  in  derogation  of  the 
common  law,  and  deriving  all  their  validity  from  statutes, 
must  in  all  essential  particulars  conform  to  the  requirements 
of  such  statutes.  (/*) 

In  what  cases  attachjuent  lies,  etc. — A  creditor  may  have 
an  attachment  against  the  property  of  his  debtor,  or  that 
of  any  one  or  more  of  several  debtors,  when  the  debt  ex- 
ceeds twenty  dollars,  in  any  of  the  following  cases  : 

1st.  Where  the  debtor  is  not  a  resident  of  the  state. 

2nd.  Where  the  debtor  conceals  himself,  or  stands  in 
defiance  of  an  officer,  so  that  process  can  not  be  served 
upon  him, 

3rd.  Where  the  debtor  has  departed  from  the  state,  with 
the  intention  of  having  his  effects  removed  therefrom. 

4th.  Where  the  debtor  is  about  to  depart  from  the  state, 
with  the  intention  of  having  his  effects  removed  therefrom. 

5th.  -Where  the  debtor  is  about  to  remove  his  property 
from  the  state,  to  the  injury  of  such  creditor. 

6th.  Where  the  debtor  has,  withm  two  years  precedino' 
the  filing  of  the  affidavit  required,  fraudulently  conveyed 
or  assigned  his  effects,  or  a  part  thereof,  so  as  to  hinder  or 
delay  his  creditors. 

7th.  Where  the  debtor  has,  within  two  years  prior  to  the 
filing  of  such  affidavit,  fraudulently  concealed  or  disposed 
of  his  property,  so  as  to  hinder  or  delay  his  creditors. 

8th.  Where  the  debtor  is  about  fraudulently  to  conceal. 

{d)   II  111,  471. 

(e)   18  111.  248 ;  3  Scam.  201 ;  99  111.  641  ;  73  111.  536. 

(/)  2  Gilm.  429;  83  111.  188;  77  111.  518;  60  111.  32S.  See  102  111.  249. 


620  ATTACHMENT. 


How  proceeding  commenced,  etc. — Affidavit  for  attachment,  etc. 

assign  or  otherwise  dispose  of  his  property  or  effects,  so  as 
to  hinder  or  delay  his  creditors. 

9th.  Where  the  debt  sued  for  was  fraudulently  contracted 
on  the  part  of  the  debtor :  provided,  the  statement  of  the 
debtor,  his  agent  or  attorney,  which  constitute  the  fraud, 
shall  have  been  reduced  to  writing,  and  his  signature  at- 
tached thereto  by  himself  or  his  agent  or  attorney,  {g) 

"This  act  shall  be  construed  in  all  courts  in  the  most  lib- 
eral manner  for  the  detection  of  fraud."  {gg) 

Comniencement  of  p7'oc ceding — Affidavit^  etc. — To  entitle  a 
creditor  to  a  writ  of  attachment,  the  statute  requires  that  "  he 
or  his  agent  or  attorney  shall  make  and  file  with  the  clerk  of 
such  court,  an  affidavit,  setting  forth  the  nature  and  amount 
of  the  indebtedness,  after  allowing  all  just  credits  and  set-offs, 
and  any  one  or  more  of  the  nine  causes  mentioned  in  the  pre- 
ceding section,  and  also  stating  the  place  of  residence  of  the 
defendant,  if  known,  and  if  not  known,  that  upon  diligent  in- 
quiry the  affiant  has  not  been  able  to  ascertain  the  same." 

The  statute  further  provides,  that  "  it  shall  be  sufificient,  in 
all  cases  of  attachment,  to  designate  defendants  by  their  re- 
puted names,  by  surnames,  and  joint  defendants  by  their  sep- 
arate or  partnership  names,  or  by  such  names,  styles  or  titles 
as  they  are  usually  known  ;  "  and  heirs,  executors  and  ad- 
ministrators of  deceased  defendants  are  subject  to  the  provis- 
ions of  the  statute,  in  all  cases  in  which  it  may  be  applicable 
to  them.  (Ji) 

No.  295,     Affidavit  for  attachment. 

State  of  Illinois,   \ 

County  of ,      j  set.     A.   B.,  of,  etc.,  makes   oath  and 

says,  that  C   D.  is  indebted  to   him,   the  said  A.  B.,  in    the 

((/)  I  Starr  &  Curds'  An.  Stat.  310;  Rev.  Stat.  (1S77)  146.  See  23  111.  66  ; 
25  111.  565;  52  111.  432;  51  III.  324;  9  Bradw.  256;  6  Bradw.  in. 

[gg)  S  arr  &  Curtis'  An.  Stat.  327;  102  111.  249;  28  111.  429;  21  111.  App.  Ct. 
(E.  B.  Smith)  547. 

(/^)  lb.;  77  111.  518;  17  Bradw.  153;  6  Bradw.  25  ;  93  111.  77  ;  loS  111.  317. 


A 


ATTACHMENT.  621 

Affidavit  for  attachment,  etc. 

sum  of dollars,  (after  allowing  all  just  credits  and  set- 
offs,) for  {here  set  forth  the  nature  of  the  debt);  and  that 
the  said  C.  D.  {here  set  forth  one  or  more  of  the  causes 
mentioned  in  the  statute.)     And  this  affiant  further  says, 

that  the  place  of  residence  of  the  said  C.  D.  is 

(or,  "is  unknown  to  this  affiant,  and  upon  diligent  inquiry- 
he  has  not  been  able  to  ascertain  the  same.") 

A.  B. 
Subscribed  and  sworn,  etc. 

When  made  by  an  agent  or  attorney,  the  affidavit  should 
commence  thus  :  "  E.  F. ,  of,  etc. ,  makes  oath  and  says,  that 
he  is  the  agent  {or  'attorney')  in  this  behalf  of  A.  B.,  of, 
etc. ;  and  that  C.  D.  is  indebted  to  the  said  A.  B.,"  etc. 

The  statute  concerning  oaths  and  affirmations  provides, 
that  "all  oaths  and  affirmations,  required  or  authorized  to 
be  taken  by  any  law  of  the  state,  when  the  person  required 
to  make  or  take  the  same  shall  reside  out  of  or  be  absent 
from  this  state,  may  be  administered  by  any  notary  public, 
or  clerk  of  a  court  having  a  seal,  to  be  certified  to  by  such 
officer  under  his  official  seal,  or  of  the  court  of  which  he  is 
clerk."  {j)  Within  the  state,  an  affidavit  may  be  made 
before  any  court,  or  any  judge,  justice  or  clerk  thereof,  or 
any  notary  public,  justice  of  the  peace,  {k)  or  master  in 
chancery,  (/)  in  their  respective  districts,  circuits  or 
counties. 

The  affidavit  must  be  positive  and  unequivocal  in  its 
terms  ;  statements  upon  information  and  belief  are  insuffi- 
cient;  {ill)  but  if  it  is  defective  it  may  be  amended,  {n) 

The  statute  provides,  that  "no  writ  of  attachment  shall 
be  quashed,  nor  the  property  taken  thereon  restored,  nor 
any  garnishee  discharged,  nor  any  bond  by  him  given 
canceled,   nor   any  rule    entered    against   the  sheriff  dis- 

(/)  2  Starr  &  Curlis'  An.  Stat.  1677  ;  Rev.  Stat,  (1S77)  686, 

{k)  lb. 

(/)  lb.     See  18  Bradw.  491. 

(w)  21  111,  80;  26  111.  48;  31  111.  306  ;  17  Bradw.  153. 

(«)  3  Scam.  21,  361  ;  31  111.  306;  79  111.  391. 


622  ATTACHMENT. 


Where  suit  is  to  be  brought,  etc. — Plaintiff  to  give  bond,  etc. 

charged,  on  account  of  any  insufficiency  of  the  original 
affidavit,  writ  of  attachment  or  attachment-bond,  if  the 
plaintiff',  or  some  credible  person  for  him,  shall  cause  a  le- 
gal and  sufficient  affidavit  or  attachment-bond  to  be  filed, 
or  the  writ  to  be  amended,  in  such  time  and  manner  as 
the  court  shall  direct ;  and  in  that  event  the  cause  shall 
proceed  as  if  such  proceedings  had  originally  been  suffi- 
cient." (o) 

The  affidavit  should  state  the  full  amount  due,  as  a 
judgment  can  not  be  rendered,  where  there  is  no  personal 
service,  or  appearance,  for  a  greater  sum  than  that  claimed 
in  the  affidavit,  with  the  accrued  interest,  (p)  Nor  should 
the  judgment  exceed  the  amount  laid  in  the  ad  damnum 
clause  of  the  declaration,  {cj) 

Where  the  suit  is  to  be  brought. — Proceedings  in  attach- 
ment are  required  to  be  commenced  in  the  count}'  where 
the  defendant  may  be  found,  or  where  he  has  property  or 
funds  liable  to  garnishment ;  and  service  must  be  had  upon 
him  or  his  property,  etc.,  in  order  to  give  the  court  juris- 
diction, (r)  But  "the  creditor  may,  at  the  same  time,  or 
at  any  time  before  judgment,  cause  an  attachment-writ  to 
be  issued  to  any  other  county  in  the  state,  where  the  debtor 
may  have  property  liable  to  be  attached,  which  shall  be 
levied  as  other  attachment-writs  :  provided,  that  if  no  prop- 
erty, rights  or  credits  of  the  debtor  are  found  in  the  county 
in  which  the  suit  is  brought,  and  no  defendant  is  served 
with  summons  or  makes  appearance,  the  creditor  shall  not 
be  entitled  to  judgment."  (5) 

Plaintiff  required  to  give  bond. — "Before  granting  an 
attachment,  as  aforesaid,  the  clerk  shall  take  bond  and 
sufficient  security,  payable  to  the  defendant  against  whom 

{0)  I  Starr  &  Curtis'  An.  Stat.  322;  Rev.  Stat.  (1877)  151;  7'  ^"-  46; 
13  Bradw.  572. 

(/)  12  111.  198;  21  111.  108;  35  111.  150;  42  111.  306, 

[q)  35  111.  150.     See  10  Bradw.  275. 

(r)  27  111.  509;  31  111.  248;  43  111.  185  ;   54  111.  523. 

(/)  I  Starr  &  Curtis'  An.  Stat.  316;  Rev,  Stat,  (1877)  148.  See  ^2>  H^-  460; 
85  111.  138;  6  Bradw.  25,  445,  454, 


ATTACHMENT.  623 


Against  joint  debtors,  etc. 


the  writ  is  to  be  issued,  in  double  the  sum  sworn  to  be  due, 
conditioned  for  satisfying  all  costs  which  may  be  awarded 
to  such  defendant,  or  to  any  others  interested  in  said  pro- 
ceedings, and  all  damages  and  costs  which  shall  be  recov* 
ered  against  the  plaintiff,  for  wrongfully  suing  out  such 
attachment — which  bond,  with  affidavit  of  the  party  com- 
plaining, or  his  agent  or  attorney,  shall  be  filed  in  the  office 
of  the  clerk  granting  the  attachment.  Every  attachment 
issued  without  a  bond  and  affidavit  taken,  is  hereby  declared 
illegal  and  void,  and  shall  be  dismissed."  (^) 

If  the  bond  is  found  to  be  defective,  it  may  be  amended,  [tc) 
Objections  to  a  defective  bond  must  be  made  in  apt  time. 
It  is  too  late  to  object  to  such  bond  after  the  cause  is  re- 
moved to  the  supreme  court,  {v) 

The  statute  gives  the  form  of  the  plaintiff's  bond,  as  well 
of  the  writ  of  attachment,  {w) 

Attachment  against  joint  debtors. — "  In  all  cases  where 
two  or  more  persons  are  jointly  indebted,  either  as  part- 
ners or  otherwise,  and  an  affidavit  shall  be  filed  as  pro- 
vided in  the  first  section  of  this  act,  so  as  to  bring  one  or 
more  of  such  joint  debtors  within  its  provisions,  and  ame- 
nable to  the  process  of  attachment,  then  the  writ  of  attach- 
ment shall  issue  against  the  property  and  effects  of  such 
as  are  so  brought  within  the  provisions  of  this  act ;  and 
the  officer  shall  be  also  directed  in  said  writ  to  summon  all 
joint  debtors  named  in  the  affidavit  filed  in  the  case, 
whether  the  attachment  is  against  them  or  not,  to  answer 
to  the  said  action,  as  in  other  cases  of  joint  defendants."  (.v) 

In  a  proceeding  by  attachment,  against  H.  and  S.,  the 
affidavit  alleged  two  grounds  for  suing  out  the  writ — ist, 
that  H.  was  about  to  depart  the  state,  with  the  intent  to  re- 

{l)  I  Starr  &  Curtfs'  An.  Stat.  31 1 ;  Rev.  Stat.  (1877)  147. 

(?<)  lb.  151.     See  3  Scam.  577;  9  Bradw.  24, 

[v)   15  111.  266;  3  Scam.  21  ;  85  111.  138. 

{■w)   I  Starr  &  Curtis'  An.  Stat.  312;  Rev.  Stat.  (1877)  147. 

Ix)  I  Starr  &  Curtis'  An.  Stat.  313;  Rev.  Stat.  (1877)  148. 


624  ATTACHMENT. 


Execution  of  the  writ,  etc. 


move  his  effects,  to  the  injury  of  his  creditors  ;  and  2nd, 
that  H.  and  S.  were  about  fraudulently  to  sell  and  assign 
their  property  and  effects,  so  as  to  hinder  and  delay  their 
creditors.  The  defendants  pleaded  separately,  traversing 
the  affidavit.  It  was  held,  that  the  proof  having  failed  to 
sustain  the  cause  alleged  against  S.,  a  recovery  could  not 
be  had  against  both  defendants,  by  proving  the  first  alle- 
gation against  H.  (y) 

Execution  of  the  writ — service  on  the  defendant^  etc. — 
The  oihicer  "shall  without  delay  execute  such  writ  of  at- 
tachment upon  the  lands,  tenements,  goods,  chattels,  rights, 
credits,  moneys  and  effects  of  the  debtor,  or  upon  any 
lands  or  tenements  in  and  to  which  such  debtor  has  or  may 
claim  any  equitable  interest  or  title,  of  sufficient  value  to 
satisfy  the  claim  sworn  to,  with  costs  of  suit  as  commanded 
in  such  writ."  {a) 

"When  a  writ  of  attachment  is  levied  upon  any  real 
estate,  in  any  case,  it  shall  be  the  duty  of  the  officer  making 
the  levy  to  file  a  certificate  of  such  fact  with  the  recorder 
of  the  county  where  such  land  is  situated ;  and  from  and 
after  the  filing  of  the  same,  such  levy  shall  take  effect,  as 
to  creditors  and  bona  fide  purchasers,  without  notice,  and 
not  before."  (/;) 

"The  officer  shall  also  serve  said  writ  upon  the  defend- 
ant therein,  if  he  can  be  found,  by  reading  the  same  to 
him  or  delivering  a  copy  thereof.  The  return  to  such  wrif 
shall  state  the  particular  manner  in  which  the  same  was 
served."  {c) 

"If  it  shall  appear,  by  the  affidavit,  that  a  debtor  is  ac- 
tually absconding,  or  concealed,  or  stands  in  defiance  of 
an  officer  duly  authorized  to  arrest  him  on  civil  process,  as 
aforesaid,  or  has  departed  this  state  with   the  intention  ol 

{y)  49  111-  270. 

(a)  I  Starr  &  Curtis'  An.  Stat.  313;  Rev.  Stat.  (1877)   148.     See  15  111.  89, 
95,  205 ;  54  111.  523  ;  77  111    618;   103  111.  425  ;  7  Bradw.  442  ;  6  Bradw.  598. 
{}>)  lb.     See  I  Gilm.  187  ;  3  Gilm.  311 ;   16  111.  117. 
(0  I  Starr  &  Curtis'  An.  Stat.  315  ;  Rev.  Stat.  (1S77)  ^8;  77  HI.  S^S. 


ATTACHMENT.  625 

The  declaration,  etc. — Garnishees,  etc. 


having  his  effects  and  personal  estate  removed  out  of  the 
state,  or  intends  to.  depart  with  such  intention,  it  shall  be 
lawful  for  the  clerk  to  issue,  and  sheriff  or  other  officer  to 
serve,  an  attachment  against  such  debtor,  on  a  Sunday  as 
on  any  other  day."  (d) 

"  If  the  defendant,  or  any  person  for  him,  shall  be  in  the 
act  of  removing  any  personal  property,  the  officer  may 
pursue  and  take  the  same  in  any  county  in  this  state,  and 
return  the  same  to  the  county  from  which  such  attachment 
issued.'"  (c)  1 

The  declaration,  etc. — The  declaration  is  to  be  in  form 
to  correspond  with  the  nature  of  the  action  in  which  the 
attachment  has  issued.  It  must  be  filed  on  the  return  of 
the  attachment,  or  at  the  term  of  the  court  when  the  same 
is  made  returnable.  If  the  declaration  is  not  so  filed,  the 
defendant  may,  in  the  discretion  of  the  court,  have  the  suit 
dismissed ;  {/^  but  the  plaintiff  has  the  whole  term  in 
which  to  file  a  declaration.  The  defendant  may  however 
obtain  a  rule  on  the  plaintiff  to  file  a  declaration  within  a 
reasonable  time  during  the  return-term  ;  and  upon  a  failure 
to  comply  with  the  rule,  the  suit  may  be  dismissed.  The 
statute  applies  as  well  to  cases  where  there  is  as  where 
there  is  not  personal  service,  {g) 

The  declaration  must  be  limited  to  the  cause  of  action 
specified  in  the  affidavit.  If  the  plaintifl'  might  recover 
under  the  common  counts,  on  the  cause  of  action  set  forth 
in  the  affidavit,  commencing  by  attachment  does  not  deprive 
him  of  the  right  to  declare  in  that  way.  iji) 

Garnishees. — The  statute  provides,  that  "when  the 
sheriff  or  other  officer  is  unable  to  find  property  of  any 

(rf)  I  Starr  &  Curtis'  An.  Stat,  316;  Rev.  Stat.  (1877)  148;  78  ID.  259. 
{e)  lb.     See  43  111.  185. 

(/)  I  Starr  &  Curtis'  An.  Stat,  320;  Rev.  Stat.  (1877)  150 ;   12  Bradw.  302. 
(,ir)  29  111.  291 ;  18  111.  150,  273.     See  25  111.  324;  85  111.  13S;  87  III.  219. 
(/^  21    111.  108.     See  18  111.  273. 
40 


626  ATTACHMENT. 


Publication,  etc. 


defendant,  sufficient  to  satisfy  any  attachment  issued  under 
the  provisions  of  this  act,  he  shall  summon  the  persons  men- 
tioned in  such  writ  as  garnishees,  and  all  other  persons 
within  his  county  whom  the  creditor  shall  designate  as 
having  any  property,  effects,  choses  in  action  or  credits,  in 
their  possession  or  power,  belonging  to  the  defendant,  or 
who  are  in  anywise  indebted  to  such  defendant,  the  same 
as  if  their  names  had  been  inserted  in  such  writ ;  the  per- 
sons so  summoned  shall  be  considered  as  garnishees,  and 
the  sheriff  shall  state,  in  his  return,  the  names  of  all  per- 
sons so  summoned,  and  the  date  of  such  service  on  each."  (/) 

Notice  to  the  defendant  hy  ■publication. — "When  it  shall 
appear  by  the  affidavit  filed,  or  by  the  return  of  the  officer, 
that  a  defendant  in  any  attachment  suit  is  not  a  resident  of 
this  state,  or  the  defendant  has  departed  from  this  state,  or 
on  due  inquiry  can  not  be  found,  or  is  concealed  within 
this  state,  so  that  process  can  not  be  served  upon  him,  it 
shall  be  the  duty  of  the  clerk  of  the  court  in  which  the  suit 
is  pending  to  give  notice,  by  publication  at  least  once  iti 
each  week  for  three  weeks  successively,  in  some  newspaper 
published  in  this  state,  most  convenient  to  the  place  where 
the  court  is  held,  of  such  attachment,  and  at  whose  suit, 
against  whose  estate,  for  what  sum,  and  before  what  court 
the  same  is  pending ;  and  that  unless  the  defendant  shall 
appear,  give  bail,  and  plead  within  the  time  limited  for  his 
appearance  in  such  case,  judgment  will  be  entered,  and  the 
estate  so  attached  will  be  sold.  And  such  clerk  shall, 
within  ten  days  after  the  first  publication  of  such  notice, 
send  a  copy  thereof  by  mail,  addressed  to  such  defendant, 
if  the  place  of  residence  is  stated  in  such  affidavit ;  and  the 
certificate  of  the  clerk  that  he  has  sent  such  notice  in  pur- 
suance of  this  section,  shall  be  evidence  of  that  fact."  (7) 

Where  there  is  no  personal   service   upon   the  defendant, 

(?)  I  Slarr  &  Curtis'  An.  Slat.  319;  Rev.  Stat.  (1877)  150. 
(7)  lb.    See  12  III.  358;  83  III.   188;  85  111.   138;  13  liradw,   572;  60  II!' 
3^8. 


ATTACHMENT.  627 


Defenses  to  the  proceeding,  etc. — Plea  in  abatement,  etc. 

the  record  must  show  affirmatively  that  the  requirements 
of  the  statute,  in  regard  to  notice  by  pubHcation,  have  been 
fulfilled,  {k) 

"  No  default  or  proceeding  shall  be  taken  against  any 
defendant  not  served  with  summons,  unless  he  shall  ap- 
pear, until  the  expiration  of  ten  days  after  the  last  publica- 
tion as  aforesaid. 

"  If  for  want  of  due  publication  or  service,  the  cause  is 
continued,  the  same  proceedings  shall  be  had,  at  a  subse- 
quent term  of  the  court,  as  might  have  been  had  at  the 
term  at  which  the  writ  is  returnable."  (/) 


DEFENSES  TO  THE  PROCEEDING. 

The  statute  provides,  that  "  the  defendant  may  plead, 
traversing  the  facts  stated  in  the  affidavit  upon  which  the 
attachment  issued,  which  plea  shall  be  verified  by  affidavit ; 
and  if,  upon  the  trial  thereof,  the  issue  shall  be  found  for 
the  plaintiff,  the  defendant  may  plead  or  demur  to  the 
action  as  in  other  cases,  but  if  found  for  the  defendant,  the 
attachment  shall  be  quashed,  and  the  costs  of  the  attach- 
ment shall  be  adjudged  against  the  plaintiff,  but  the  suit 
shall  proceed  to  final  judgment  as  though  commenced  by 
summons."  {m) 

No.  296.     Plea  in  abatement  of  the  writ. 

In  the Court. 

Term,  iS— . 

C.  D.  ^ 

ats.    >  Attachment. 
A.  B.  3     And  the  defendant,  by  G.   H.,  his  attorney, 
comes  and  defends,  etc.,  and  prays  judgment  of  the  said 
writ,  and  that  the  same  may  be  quashed,  because  he  says, 

(k)  33  111.  460;  27  III.  35S;  85  111.  138;  60  111.  328. 

(/)  I  Starr  &  Curtis'  An.  Stat.  320;  Rev.  Stat.  (1877)  150;  63  111.  81. 
(/«)  lb.     See    Breese,  411  ;  23  111.  67;  49  III.  270.     See  70  111.   8S;  81  111. 
310. 


628  ATTACHMEINT. 


Practice  and  pleading,  etc. 


that  {here  traverse  the  allegations  of  the  affidavit .    And  of 
this  the  defendant  puts  himself  upon  the  country,  etc.  {ii) 

At  cohimon  law,  the  filing  of  a  plea  in  bar,  before  a  plea 
in  abatement  was  disposed  of,  was  a  waiver  of  the  plea  in 
abatement.  But  while  this  plea  is  called  a  plea  in  abatement, 
and  for  most  purposes,  is  governed  by  the  rules  applicable  to 
such  pleas,  yet  under  such  practice  the  issue  presented  by  a 
plea  to  a  writ  of  attachment  is  not  waived  by  filing  pleas  in 
bar  to  the  cause  of  action  set  forth  in  the  declaration.  They 
should  all  be  submitted  to  the  same  jury,  [s) 

A  plea  in  abatement  of  an  attachment-writ  should  con- 
clude to  the  country,  and  issue  is  joined  thereon  by  adding 
the  common  similiter.  The  burden  of  proof  is  on  the 
plaintiff,  to  maintain  the  allegations  of  his  affidavit ;  and  if 
the  finding  on  such  issue  is  for  the  defendant,  the  writ  is  to 
be  quashed,  {d)  It  was  formerly  the  practice,  in  such  event, 
to  abate  the  suit,  (^)  but  the  statute  (the  section  last  above 
quoted)  now  provides  that  the  suit  shall  proceed  to  final 
judgment  as  though  commenced  by  summons. 

A  plea  which  avers  that  the  defendant  was  not  a  non- 
resident at  the  time  the  writ  issued,  is  sufficiently  certain, 
when  it  appears  that  the  affidavit  was  made  the  same  day 
the  writ  issued,  {q) 

Practice  and  pleadings. — The  practice  and  pleadings  in 
attachment-suits,  except  as  otherwise  provided  by  the  stat- 
ute in  relation  to  attachments,  are  to  conform,  as  nearly  as 
may  be,  to  the  practice  and  pleadings  in  other  suits  at 
law.  {r) 

(«)  See  Breese,  411;  5  Gilm.  21;  13  111.  674,675;  16  111.  306;  17  111.  33;  23 
111.66;  28  III.  113. 

(j)  70  111.  87. 

(0)  17  111.  33;  49  111.  270.  See  5  Gihn.  21 ;  13  111.  675;  16  111.  306;  28  111. 
113;  70  111.  88. 

(/)  49  111.  270.     See  23  111.  67;  Bieese,  411. 

^5^)  45  111.  296. 

(r)   I  Starr  &  Curtis'  An.  Stat.  320;  Rev.  Stat,  (1877)  150. 


ATTACHMENT.  629 


Forthcoming  bond,  etc. — Bond  or  recognizance  to  cover  judgment,  etc. 

A  defendant  may  avail  himself  of  any  set-ofF  properly 
pleadable  by  the  laws  of  the  state.  (5) 

By  simply  appearing  and  pleading,  a  defendant  can  not 
have  an  attachment  dissolved.  This  can  only  be  effected 
by  giving  bond  and  securit}^  as  required  by  the  statute.  (/) 

Forthcoming  bond,  etc. — The  statute  provides,  that  "the 
officer  serving  the  writ  shall  take  and  retain  the  custod}" 
and  possession  of  the  property  attached,  to  answer  and 
abide  by  the  judgment  of  the  court,  unless  the  person  in 
whose  possession  the  same  is  found  shall  enter  into  bond 
and  security  to  the  officer,  to  be  approved  by  him,  in  double 
the  value  of  the  property  so  attached,  with  condition  that 
the  said  estate  and  property  shall  be  forthcoming  to  answer 
the  judgment  of  the  court  in  said  suit.  The  sheriff,  or  other 
officer,  shall  return  such  bond  to  the  court  in  which  the  suit 
is  brought,  on  the  first  day  of  the  term  to  which  such 
attachment  is  returnable."  (ic) 

Bona  or  recognizance  to  cover  the  judgment,  etc. — 
The  statute  further  provides,  that  "  any  defendant  in  attach- 
mentj  desiring  the  return  of  property  attached,  may,  at  any 
time  except  in  term  time,  at  his  option,  instead  of  or  in 
substitution  for  the  bond  required  in  the  preceding  section, 
give  like  bond  and  security,  in  a  sum  sufficient  to  cover  the 
debt  and  damages  sworn  to  in  behalf  of  the  plaintiff,  with 
all  interest,  damages  and  costs  of  suit,  conditioned  that  the 
defendant  will  pay  the  plaintiff  the  amount  of  the  judgment 
and  costs  which  may  be  rendered  against  him  in  th  it  suit, 
on  a  final  trial,  within  ninety  days  after  such  judgment  shall 
be  rendered.  In  term  time,  a  recognizance,  in  substance 
as  aforesaid,  may  be  taken  in  open  court,  and  entered  of 
record,  in  which  case  the  court  shall  approve  of  the  security 
and  the  recognizance  made  to  the  plaintiff,  and  upon  a  for- 

{s)   I  Starr  &  Curtis'  An.  Stat.  323;  Rev.  Stat.  (1877)  151. 
(/■)   I  Gilm.   187,  531. 

(")  I  Starr  &  Curtis'  An.  Stat.  316;  Rev.  Stat.  (1877)  148.     See  46  111.  504; 
71  111.  46;  9  Bradw.  24. 


630  ATTACHMENT. 


Liability  of  sheriff,  etc. — Insufficient  bond,  etc. 


feiture  of  such  recognizance,  judgment  may  be  rendered 
and  execution  issued  as  in  other  cases  of  recognizance.  In 
either  case,  the  attachment  shall  be  dissolved,  and  the  prop- 
erty taken  restored,  and  all  previous  proceedings,  either 
against  the  sheriff  or  against  the  garnishees,  set  aside,  and 
the  cause  shall  proceed  as  if  the  defendant  had  been  season- 
ably served  w^ith  a  writ  of  summons."  (v) 

Liability  of  sheriff  for  failing  to  take  or  return  bond. — 
"If  the  sheriff  shall  fail  to  return  a  bond  taken  by  virtue 
of  the  provisions  of  this  act,  or  shall  have  neglected  to  take 
one  when  he  ought  to  have  done  so,  in  any  attachment 
issued  under  any  provisions  of  this  act,  the  plaintiff  in  the 
attachment  may  cause  a  rule  to  be  entered  at  any  time 
during  the  first  ten  days  of  the  term  to  which  the  writ 
is  returnable,  requiring  the  said  sheriff  to  return  the  said 
bond ;  in  case  no  bond  has  been  taken,  to  show  cause  why 
such  bond  was  not  taken.  If  the  said  sheriff  shall  not  re- 
turn the  said  bond  within  one  day  thereafter,  or  show  legal 
and  sufficient  cause  why  the  said  bond  had  not  been  taken, 
judgment  shall  be  entered  up  against  him  for  the  amount 
of  the  plaintiff's  demand,  with  costs  of  suit;  execution  may 
thereupon  issue  for  the  same,  whenever  judgment  shall 
have  been  entered  against  the  defendant  in  the  attach- 
ment." {w) 

Insufficient  bond,  etc. — "The  plaintiff  may,  at  the  first 
term  after  the  return  of  such  bond,  except  to  the  sufficiency 
thereof,  reasonable  notice  of  such  exception  having  been 
given  to  the  sheriff  or  other  officer  who  took  the  same,  and 
if,  upon  Hearing,  the  court  shall  adjudge  such  security  in- 
sufficient, such  sheriff  shall  be  subject  to  the  same  judg- 
ment and  recoveiy  and  have  the  same  liberty  of  defense 
as  if  he  had  been  made  defendant  in  the  attachment,  unless 

[v)   1  Starr  &  Curtis'  An.   Stat.   317;   Rev.  Stat.  (1877)  149.     See  2  Gilm. 
468  ;  25  111.  2S9  ;  93  111.  77. 
{w)  lb,;  Rev.  Stat.  (1877)  149. 


ATTACHMENT.  631 

Suit  on  bond,  etc. — Feeding  animals  attached,  etc. 

good  and  sufficient  security  shall  be  given,  within  such 
time  as  may  be  directed  by  the  court,  and  execution  may 
issue  thereupon,  as  in  other  cases  of  judgment.  And 
whenever  the  judgment  of  the  plaintiff,  or  any  part  thereof, 
shall  be  paid  or  satisfied  by  any  such  sheriff,  he  shall  have 
the  same  remedy  against  the  defendant  for  the  amount  so 
paid  by  him  as  is  now  provided  by  law  for  bail  against 
their  principal,  where  a  judgment  is  paid  or  satisfied  b}^ 
them."  (x) 

Suit  on  bond,  etc. — "If  the  plaintiff  shall  not  except  to 
the  bond  taken  by  the  sheriff,  as  aforesaid,  or  the  excep- 
tions are  not  sustained,  and  such  bond  shall  be  forfeited, 
the  plaintiff  in  the  attachment  may  bring  suit  thereon  in  his 
own  name,  the  same  as  if  such  bond  had  been  assigned  to 
him,  and  judgment  shall  be  given  for  the  plaintiff' against 
the  obligors  in  the  bond  for  the  value  of  the  property,  or  if 
the  property  is  greater  than  the  amount  due  upon  the 
execution,  then  for  the  amount  due  and  costs  of  suit."  (j) 

Feeding  animals  attached.  —  "When  any  sheriff'  or 
other  officer  shall  serve  an  attachment  on  horses,  cattle  or 
live  stock,  and  the  same  shall  not  be  immediately  replevied 
or  restored  to  the  debtor,  such  officer  shall  provide  sufficient 
sustenance  for  the  support  of  such  live  stock  until  the  same 
shall  be  sold  or  discharged  from  such  attachment.  He 
shall  receive  therefor  a  reasonable  compensation,  to  be 
ascertained  and  determined  by  the  court  out  of  which  the 
attachment  issued,  and  charged  in  the  fee  bill  of  such 
officer,  and  shall  be  collectible  as  part  of  the  costs."  {z) 

Sale  of  -perishable  property,  etc. — "When  any  goods 
and  chattels  shall  be  levied  on  by  virtue  of  any  attachment, 
and  the  sheriff'  or  other  officer,   in   whose   custody   such 

{x)    I  Starr  &  Curtis'  An.  Stat.  317-8  ;  Rev.  Stat.  (1877)  149. 
( y)  lb.;  5  Gilm.  80, 
(=)     lb. 


6^2  ATTACHMENT. 


^o 


Interpleader,  etc. 


goods  and  chattels  are,  shall  be  of  opinion  that  the  same 
are  of  a  perishable  nature  and  in  o>anger  of  immediate 
waste  or  decay,  such  sheriff  or  other  officer  shall  summon 
three  respectable  freeholders  of  his  county,  who  shall  ex- 
amine the  goods  and  chattels  so  levied  on  ;  and  if  the  said 
freeholders  shall,  on  oath  or  affirmation,  certify  that  in 
their  opinion  they  are  of  a  perishable  nature,  and  in  danger 
of  immediate  waste  and  decay,  then  such  goods  and  chat- 
tels shall  be  sold  at  public  vendue,  by  the  sheriff  or  other 
officer,  he  having  first  advertised  such  sale  at  the  court 
house  and  two  other  public  places  in  his  county  at  least 
ten  days  before  the  sale  :  Provided^  such  property  may  be 
sold  upon  such  notice,  less  than  ten  days,  as  the  examiners 
shall  certify  will  be  for  the  best  interest  of  the  parties  con- 
cerned. The  money  arising  from  such  sale  shall  be  liable 
to  the  judgment  obtained  upon  such  attachment,  and  de- 
posited in  the  hands  of  the  clerk  of  the  court  to  which  the 
process  shall  be  returnable,  there  to  abide  the  event  of  such 
suit."  {a) 

Interpleader  by  a  third  farty,  claiming  the  -property 
attached. — "In  all  cases  of  attachment,  any  person,  other 
than  the  defendant,  claiming  the  property  attached,  may 
interplead,  verifying  his  plea  by  affidavit,  without  giving 
bail,  but  the  property  attached  shall  not  thereby  be  re- 
plevied ;  and  the  court  shall  immediately  (unless  good 
cause  be  shown  by  either  party  for  a  continuance)  direct  a 
jury  to  be  impanneled  to  inquire  into  the  right  of  property  ; 
in  all  cases  where  the  jury  find  for  a  claimant,  such  claim- 
ant shall  be  entitled  to  his  costs  ;  and  where  the  jury  find 
for  the  plaintiff  in  the  attachment,  such  plaintiff  shall  re- 
cover his  costs  against  such  claimant.  If  such  claimant  is 
a  non-resident  of  the  $tate  he  shall  file  security  for  costs  as 
in  case  of  non-resident  plaintiff."  {b) 

[d]  I  St.irr  &  Curtis'  An.  Stat.  318;  Rev.  Stat.  (1877)  149;   I17  111.  330. 
(/;)  I  Starr  &  Curtis'  An.  Slat.   322;   Rev.  Stat.  (1877)  151.     See  12  111.  93; 
68  111.  348;  89  111,  469;  113  111.  654;  18  Bradw.  430,  491. 


ATTACHMENT.  633 


Iiitci'pleader,  etc. — Attachments  in  aid  of  suits,  etc. 

No.  297.     Pica  by  a  third  person  ^  claiming  the  ^ro^e7'ty. 

In  the Court. 

Term,  18—. 

A.  B.  ^ 
vs,     >  Attachment. 

C.  D.  3  And  J.  K.,  by  L.  M.,  his  attorney,  comes  and 
interpleads,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  says,  that  the  goods  and 
chattels  {or  "parcel  of  the  goods  and  chattels,  to  wit,"  de- 
scribing them,)  attached  and  seized  by  virtue  of  the  said 
writ  of  attachment,  in  this  behalf,  were  at  the  time  the  same 
were  so  attached  and  seized,  and  still  are,  the  property  of 
him  the  said  J.  K.,  and  not  of  the  said  C.  D.  :  And  this 
the  said  J.  K.  is  ready  to  verify  ;  wherefore  he  prays  judg- 
ment if  his  said  goods  and  chattels  ought  to  be  detained  by 
virtue  of  the  said  writ,  etc. 

{Add  affidavit,  as  under  last  precedent.) 

Attachments  in  aid  of  suits. — "The  plaintiff  in  any 
action  of  debt,  covenant  or  trespass,  or  on  the  case  upon 
promises,  having  commenced  an  action  by  summons  or 
capias,  may,  at  any  time  pending  such  suit,  and  before 
judgment  therein,  on  filing  in  the  ofiice  of  the  clerk  v%' here 
such  action  is  pending  a  sufficient  bond  and  affidavit  show- 
in<T  his  rio-ht  to  an  attachment  under  the  first  section  of  this 
act,  sue  out  an  attachment  against  the  lands,  goods,  chat- 
tels, rights,  moneys,  credits  and  effects  of  the  defendant, 
which  attachment  shall  be  entitled  in  the  suit  pending,  and 
be  in  aid  thereof;  and  such  proceedings  shall  be  thereupon 
had  as  are  required  or  permitted  in  original  attachments, 
as  near  as  may  be  :  Provided,  this  section  shall  not  apply 
to  actions  of  trespass,  or  cases  in  which  the  defendant  has- 
been  arrested  and  has  given  special  bail.  And  provided 
further,  tliat  in  all  actions  of  trespass,  and  trespass  on  the 
case,  before  a  writ  of  attachment  shall  be  issued,  the  plaintifT, 
his  agent  or  attorney  shall  apply  to  a  judge  of  a  court  of 
record  or  master  in  chancery  of  the  county  in  which  the 
suit  is  pending,  and  be  examined,  under  oath,  by  such 


634  •  ATTACHMENT. 


Affidavit  for  attachment  in  aid,  etc. 


judge  or  master  concerning  the  cause  of  the  action ;  and 
thereupon  such  judge  or  master  shall  indorse  upon  the 
affidavit  the  amount  of  damages  for  which  the  writ  shall 
issue,  and  no  greater  amount  shall  be  claimed. 

"  In  all  cases  when  a  scire  facias  shall  be  sued  out  of  any 
court  of  this  state,  to  make  any  person  party  to  any  judg- 
ment that  has  been  or  hereafter  may  be  rendered  therein, 
writs  of  attachment  may  be  issued  in  aid  thereof,  against 
one  or  all  of  the  persons  named  in  such  scire  facias^  to  any 
county  of  this  state,  upon  the  terms  provided  in  this  act; 
and  the  parties  in  such  writs  of  attachment  may  be  brought 
in  by  notice,  as  in  other  cases  of  attachment,  when  per- 
sonal service  can  not  be  had. 

"  Upon  the  return  of  attachments  issued  in  aid  of  actions 
pending,  unless  it  shall  appear  that  the  defendant  or  de- 
fendants have  been  served  with  process  in  the  original 
cause,  notice  of  the  pendency  of  the  suit,  and  of  the  issue 
and  levy  of  the  attachment,  shall  be  given  as  is  required 
in  cases  of  original  attachment ;  and  such  notification  shall 
be  sufficient  to  entitle  the  plaintiff  to  judgment,  and  the 
right  to  proceed  thereon  against  the  property  and  estate 
attached,  and  against  garnishees,  in  the  same  manner  and 
with  like  effects  as  if  the  suit  had  been  commenced  by  at- 
tachment." (c) 

No.  298.     Affidavit  for  attachment  in  aid  of  action  of 
assumpsit,  debt  or  covenant. 

In  the Court. 

A.  B.  ^ 
vs.     y^Ass  umj)sit . 

C.  D.  3  The  said  A.  B.,  plaintiff,  makes  oath  and 
says,  that  the  said  C.  D.,  defendant,  is  indebted  to  him  the 

said  A.  B.  in  the  sum  of dollars,  (after  allowing  all 

just  credits  and  set-offs,)  for  {here  set  forth  the  nature  of 
the  debt);  and  that  the  said  C.  D.  {here  set  forth  one  or 
more  of  the  causes  mentioned  in  the  statute.)     And  this 

(c)  I  Starr  &  Curtis'  An.  Stat.  323-4;  Rev.  Stat.  (1877)  151.  See  2  Scam. 
462;  3  Scam.  548;  5  Gilm.  445;  84  111.  400;  71  111.  46;  86  111.  46. 


ATTACHMENT.  6-,< 


o:) 


Affidavit  for  attachment  in  aid,  etc. 


affiant  further  says,  that  the  place  of  residence  of  the  said 

C.  D.  is (or  "is  unknown  to  this  affiant,  and  upon 

diHgent  inquiry  he  has  not  been  able  to  ascertain  the  same"). 

A.  B. 
Subscribed  and  sworn,  etc. 

When  made  by  .an  agent  or  attorney,  the  affidavit 
should  commence  in  this  manner:  "  E.  F.,  of,  etc.,  makes 
oath  and  says,  that  he  is  the  agent  (<9r 'attorney')  in  this 
behalf  of  the  said  A.  B.,  plaintiff;  and  that  the  said  C.  D. 
is  indebted  to  the  said  A.  B.,"  etc. 

A^o.  299.     Affidavit  for  attachment  in  aid  of  action  of 
trespass  or  case. 

In  the Court. 

A.  B.  ^ 

vs.      >  Trespass. 

C.  D.  3  The  said  A.  B.,  plaintiff,  makes  oath  and 
sa3'S,  that  {here  set  forth  the  nature  and  cause  of  the 
action.,  -with  the  substantial  facts  in  relation  thereto^.  And 
this  affiant  further  says,  that  the  amount  of  his  damages 
can  not  be  definitely  stated,  but  he  believes  he  has  sus- 
tained damages  in  this  behalf  to  the  amount  of dollars. 

And  this  affiant  fui-ther  says,  that  the  said  C.  D.  {here  set 
forth  the  cause  for  the  attachment.^  And  this  affiant 
further  says,  that  the  place  of  residence  of  the  said  C.  D. 
is {or  "is  unknown  to  this  affiant,  and  upon  dil- 
igent inquiry  he  has  not  been  able  to  ascertain  the  same"). 

A.  B. 

Subscribed  and  sworn,  etc. 

See  the  remark  under  the  last  precedent. 
The  facts  constituting  the  cause  of  action  should  be  set 
forth  substantially  as  in  a  declaration. 

fudge's  or  masters  order,  to  be  indorsed  on  the  affidavit. 

The  affiant  having  been  examined  on  oath,  before  me, 
concerning  the  cause  of  action  within  set  forth,  let  the  at- 
tachment issue  for  the  sum  of dollars. 

{Date.) 

R.  S.,  'Jads;e. 

To  L.  M.,  Clerk,  etc. 


676  ATTACHMENT. 


Judgment  when  there  is  no  personal  service,  etc. — Division  of  proceeds,  etc. 

'Judgment  when  the  defendant  is  not  personally  served, 
etc. — "When  the  defendant  shall  be  notified  as  aforesaid," 
(by  advertisement,)  "  but  not  served  with  process,  and  shall 
not  appear  and  answer  the  action,  judgment  by  default 
may  be  entered,  which  may  be  proceeded  upon  to  final 
judgment  as  in  other  cases  of  default,  but  in  no  case  shall 
judgment  be  rendered  against  the  defendant  for  a  greater 
sum  than  appears,  by  the  affidavit  of  the  plaintiff,  to  have 
been  due  at  the  time  of  obtaining  the  attachment,  with  in- 
terest, damages  and  costs;  and  such  judgment  shall. bind, 
and  a  special  execution  shall  issue  against  the  property, 
credits  and  effects  attached,  and  no  execution  shall  issue 
against  any  other  property  of  the  defendant ;  nor  shall 
such  judgment  be  any  evidence  of  debt  against  the  defend- 
ant in  any  subsequent  suit."  {d) 

Sale  of  property  on  execution. — "The  property  attached 
ma}^  be  levied  upon  by  execution  issued  in  the  attachment- 
suit,  whether  in  tiie  hands  of  the  officer  or  secured  by  bond 
as  provided  in  this  act,  and  shall  be  sold  as  other  property 
levied  upon  by  execution."  {e) 

Division  of  proceeds,  etc. — "All  judgments  in  attach- 
ments against  the  same  defendant,  returnable  at  the  same 
term,  and  all  judgments  in  suits  by  summons,  capias  or 
attachment  against  such  defendant,  recovered  at  that  term 
or  at  the  term  when  the  judgment  in  the  first  attachment 
upon  which  judgment  shall  be  recovered  is  rendered,  shall 
share  pro  rata,  according  to  the  amount  of  the  several 
judgments,  in  the  proceeds  of  the  property  attached, 
either  in  the  hands  of  a  garnishee  or  otherwise  :  Provided, 
when  the  property  is  attached  while  the  defendant  is  re- 
moving the  same,  or  after  the  same  has  been  removed, 
from  the  county,  and  the  same  is  overtaken  and  returned, 
or  while  the  same  is  secreted  by  the  defendant,  or  put  out 


{d)  I  Starr  &  Curtis'  An.  Stat.  324;  Rev.  Stat.  (1877)  152;  35  111.  150. 
{e)  lb.     See  77  111.  618. 


ATTACHMENT.  637 

Division  bj  sheriff — Proceeds  brought  into  court — Garnishment,  etc. 


of  his  hands,  for  the  pm-pose  of  defrauding  his  creditors, 
the  court  may  allow  the  creditor  or  creditors  through 
whose  diligence  the  same  shall  have  been  secured  a  prior- 
ity over  other  attachment  or  judgment  creditors."  {f) 

Division  by  the  sheriff,  etc.  —  "Upon  issuing  execu- 
tions against  any  property  attached,  the  proceeds  of  which 
shall  be  required  to  be  divided,  the  clerk  shall,  at  the  same 
time,  make  out  and  deliver  to  the  sheriff,  or  other  officer  to 
whom  the  execution  is  issued,  a  statement  of  all  judgments, 
with  the  costs  thereon,  which  shall  be  entitled  to  share  in 
such  proceeds,  and  when  any  judgment  creditor  shall  have 
been  allowed  a  priority  over  the  other  judgment  creditors, 
the  same  shall  be  stated.  Upon  the  receipt  of  such  pro- 
ceeds by  the  sheriff  or  other  officer,  he  shall  divide  and  pay 
over  the  same  to  the  several  judgment  creditors  entitled  to 
share  in  the  same  in  the  proportion  they  shall  be  entitled 
thereto."  {g) 

Proceeds  brought  into  court. — "The  court  may,  at  any 
time  before  the  proceeds  of  any  attached  property  have 
been  paid  over  to  the  judgment  creditors,  order  the  whole 
or  any  part  thereof  to  be  paid  into  court,  and  may  make 
any  and  all  such  orders  concerning  the  same  as  it  shall 
deem  just."  (/^) 

GARNISHMENT. 

The  statute  provides,  that  "whenever  a  judgment  shall 
be  rendered  by  any  court  of  record,  or  any  justice  of  the 
peace  in  this  state,  and  an  execution  against  the  defendant 
in  such  judgment  shall  be  returned  by  the  proper  officer, 
"No  property  found,"  on  the  affidavit  of  the  plaintiff,  or 
other  credible  person,  being  filed  with  the  clerk  of  such 
court,  or  justice  of  the  peace,  that  said  defendant  has  no 

(/)  I  Starr  &  Curtis'  An.  Stat.  335;  Rev  Stat.  (1877)  152,  82  111.  157,  19 
111   608;  13  Bradw.  573;  114  111.  483:  113  III.  47;  21  111.  App.  Ct.  277. 

(g)  I  Starr  &  Curtis'  An.  Stat.  327;  2  Giim.  464;   loS  111.  3S5;  115  111.  390. 
[h)  lb.;  19  Bradw.  581  ;  92  111.  221  ;  117  111.  330. 


638  ATTACHMENT. 


Affidavit  for  process  of  garnishment — Service  and  return  of  summons,  etc 

property  within  the  knowledge  of  such  affiant,  in  his  pos- 
session, liable  to  execution,  and  that  such  affiant  hath  just 
reason  to  believe  that  any  other  person  is  indebted  to  such 
defendant,  or  hath  any  effects  or  estate  of  such  defendant 
in  his  possession,  custody  or  charge,  it  shall  be  lawful  for 
such  clerk  or  justice  of  the  peace  to  issue  a  summons 
against  the  person  supposed  to  be  indebted  to,  or  supposed 
to  have  any  of  the  effects  or  estate  of  the  said  defendant, 
commanding  him  to  appear  before  said  court  or  justice,  as 
a  garnishee  ;  and  said  court  or  justice  of  the  peace  shall 
examine  and  proceed  against  such  garnishee  or  garnishees, 
in  the  same  manner  as  is  required  by  law  against  gar- 
nishees in  original  attachments."  (i) 

No.  300.     Affidavit  for  process  of  garnishment. 

{Vemie,  and  title  of  cause  as  in  No.  2gy,  ante,  page  6jj.) 

A.  B.,  the  plaintiff  in  the  above  entitled  cause,  makes  oath 
and  says,  that  on,  etc.,  he  recovered  a  judgment  in  this  court, 

against  the  said  C.  D,  for  the  sum  of dollars  and  costs 

of  suit;  that  on,  etc.,  an  execution  was  issued  on  said  judg- 
ment, and  delivered  to  the  sheriff  of  said  county,  it  being 
the  county  in  which  the  defendant  then  and  still  resides,  to 
execute;  that  on,  etc.,  said  sheriff  returned  said  execution 
"  no  property  found ;  "  affiant  further  states,  that  the  said  C. 
D.  has  no  property  within  affiant's  knowledge,  liable  to  ex- 
ecution; and  affiant  has  just  reason  to  believe  that  G.  H.  and 
J.  K  are  indebted  to  the  said  C  D.,  or  have  effects  or  estate 
of  the  said  C.  D.  in  their  possession,  custody  or  charge. 

A.  B. 
Subscribed  and  sworn  to,  etc. 

Service  and  return  of  siimmov.s. — "Such  garnishee-sum- 
mons,  when  issued  by  the  clerk  of  a  court  of  record,  shall  be 
made  returnable,  and  be  served  as  other  summonses. 

"  No  judgment  by  default  shall  be  rendered  unless  such 
process  shall  have  been  served  ten  days  before  the  return 
day;  but  if  such  process  shall  have  been  served  within  less 
than    ten  days,   it   shall  be   deemed   returnable   on   the  first 

(?)  Rev.  Slat.  (1877)  529  J  72  HI.  487  ;  ^9  B»-advv.  185  ;  20  Bradvv.  297. 


ATTACHMENT.  6sg 

Interrogatories  and  answers,  etc.. 

day  of  the  next  term  of  the  court.  If  garnishee  process 
shall  be  issued  in  term  time,  it  shall  be  made  returnable  on 
the  first  day  of  the  next  term  of  the  court. 

"  If  such  process  is  issued  .by  a  justice  of  the  peace,  it 
shall  be  made  returnable  within  the  same  time,  and  be 
served  in  the  same  manner  as  other  summonses  issued  by 
justices  of  the  peace."  (j) 

Interrogatories  and  answers. — "When  any  person  is 
summoned  as  a  garnishee  upon  any  process  of  attachment 
or  garnishee-summons  issued  out  of  a  court  r>f  record,  the 
plaintiff  shall,  at  or  before  the  term  at  which  the  garnishee 
is  bound  to  appear,  or  within  such  further  time  as  the  court 
shall  allow,  exhibit  and  file  all  and  singular  such  allega- 
tions and  interrogatories,  in  writing,  upon  which  he  shall 
be  desirous  to  obtain  and  compel  the  answer  of  any  and 
every  garnishee,  touching  the  lands,  tenements,  goods, 
chattels,  moneys,  choses  in  action,  credits  and  effects  of 
such  defendant,  and  the  value  thereof,  in  his  possession, 
custody  or  charge,  or  from  him  due  and  owing  to  the  said 
defendant  at  the  time  of  the  service  of  the  said  writ,  or  at 
any  time  after,  or  which  shall  or  may  thereafter  jecome 
due ;  and  it  shall  be  the  duty  of  every  garnishee  to  exhibit 
and  file,  under  his  oath  or  affirmation,  within  ten  days  after 
he  shall  be  notified  of  the  filing  of  such  interrogatories,  or 
if  no  notice  of  the  filing  of  the  same  shall  have  been  served 
upon  him,  then  on  or  before  the  third  day  of  the  next  suc- 
ceeding term  after  the  term  at  which  such  interrogatories 
are  filed,  full,  direct  and  true  answers  to  all  and  singular 
the  allegations  and  interrogatories  by  the  plaintiff  so  ex- 
hibited and  filed  ;  but  in  no  case  shall  the  garnishee  be 
compelled  to  answer  before  the  third  day  of  the  return  term 
of  the  garnishee  process."  {k) 

Until   interrogatories  are  filed,   and    an    opportunity  is 

(/)  Rev.  St.i:.  (1877)  529;  64  111.  106;  72  111.  598;   115  111.   294,   350;   18 
Bradw.  430. 
{k)  lb.;  78  111.598;  75111.  544,  lb.  II  ,  72  111.  81;  70  111.  l68;  87  111.  lo;.  » 


640  ATTACHMENT. 


1 


Interrogatories  to  garnishees,  etc. — Answers  of  garnishee,  etc. 

afforded  to  the  garnishee  to  answer  them,  and  a  conditional 
judgment  taken,  and  a  scire  facias  issued,  and  served,  (or 
notice  given, ^  a  final  judgment  can  not  be  rendered.  (/) 

No.  301.     Interrogatories  io  garnishees. 

In  the Court. 

Term,  18 — . 

A.  B.  ^ 

vs.      >  Assumpsit. 
C.  D.  3       Interrogatories   to   be    answ^ered   by  G.  H., 
J.  K.  and  N.   O.,  respectively,  as  garnishees  in   this  be- 
half: 

1 .  Are  3'^ou  acquainted  with  the  parties  plaintiff  and  de- 
fendant in  this  cause  ? 

2.  Had  you  at  or  after  the  time  of  the  service  of  process 
on  you  in  this  cause,  or  have  you  now,  in  your  possession, 
custody  Or  charge,  any  lands,  tenements,  goods,  chattels, 
moneys,  choses  in  action,  credits  or  effects  of  the  said 
C.  D.  ?  If  yea,  set  forth  fully  and  particularly  the  kind, 
number,  quantity  and  value  thereof  respectively. 

3.  Were  3'ou  at  or  after  the  time  of  the  service  of  such 
process  on  you,  or  are  you  now,  in  any  manner  indebted 
to  the  said  C.  D.  ?  If  yea,  set  forth  fully  and  particularly 
for  what,  how,  and  to  what  amount  you  were  or  are  so  in- 
debted to  him. 

{Add  such  interrogatories  as  the  circumstances  may 
require.^ 

E.  F.,  Attorney  for  Plaintiff. 

No.  302.     Answers  of  garnishee. 

In  the Court. 

Term,  18— 

A.  B.  ^ 

vs.      >  Assumpsit. 

C.  D.  )  The  answers  of  G.  H.  to  the  interrogatories 
propounded  to  him,  as  garnishee  in  this  behalf,  by  the  said 
A.  B.,  plaintiff: 

I.  To  the  first  interrogatory,  the  said  G.  H.  answering 
says,  that  {Jiere  insert  the  matter  of  the  answer.) 

(/)  19  111.  293  ;  31  III.  141 ;  115  ill-  63  ;  20  Bradw.  133. 


11 


ATTACHMENT.  641 

Plaintiff  may  contest  answer,  etc. 

2.  To  the  second  interrogatory,  the  said  G.  H.  answer- 
ing sa3's,  that,  etc. 

[Ansivcr  all  the  interrogatories  in  succession^  and  add 
affidavit  asfollozvs:) 

In  the Court. 

A.  B.^ 

vs.     y  Asstwipsit. 
C.  D.  j      G.  H.  makes  oath  and  says,  that  the  foregoing 
answers,  by  him  made,  are  true  in  substance  and  in  fact. 

G.  H. 
Subscribed  and  sworn,  etc. 

If  a  private  corporation  is  made  a  garnishee,  it  may 
answer  by  its  proper  officer  or  agent,  but  the  answer  must 
be  under  oath,  (w) 

Plaintiff  may  contest  the  answer. — "When  the  plaintiff 
in  any  garnishee  proceeding  shall  allege  that  any  garnishee 
served  with  process,  or  appearing  before  any  court,  hath 
not  truly  discovered  the  lands,  tenements,  goods,  chattels, 
moneys,  choses  in  action,  credits  and  effects,  or  if  before  a 
justice  of  the  peace  such  personal  effects  of  the  defendant 
in  the  attachment-suit  or  judgment,  and  the  value  thereof, 
.  in  his  possession,  custody  or  charge,  or  from  him  due  and 
owing  to  the  defendant  at  the  time  of  the  service  of  the 
writ,  or  at  any  time  after,  or  which  shall  or  may  thereafter 
become  due,  the  court  or  justice  of  the  peace  shall  im- 
mediately (unless  the  case  shall  for  good  cause  be  con- 
tinued) proceed  to  try  such  cause,  as  against  such  gar- 
nishee, without  the  formality  of  pleading.  The  trial  shall 
be  conducted  as  other  trials  at  law,  and  if  the  finding  or 
verdict  shall  be  against  the  garnishee,  judgment  shall  be 
given  against  him  in  the  same  manner  as  if  the  facts  had 
been  admitted  by  him,  with  all  costs  of  such  trial.  If  the 
finding  shall  be  in  favor  of  the  garnishee,  he  shall  recover 
his  osts  against  the  plaintiff.     And  in  case  the  garnishee 

(w)    17  111.  45y,  587  ;  115  l!l.  63,  390  ;  II  Bradw.  525. 
41 


642  ATTACHMENT.. 


Garnishee  may  deduct  demands,  etc. 


admits  indebtedness  to  the  judgment  debtor,  he  shall  not  be 
liable  for  costs."  {n) 

The  answer  of  a  garnishee  will  be  considered  as  true 
until  it  is  contradicted  or  disproved,  (o)  It  however  only 
makes  a  case  prima yacic  for  the  garnishee,  and  may  be 
overcome  by  preponderating  testimony,  (p)  If  it  is  vague 
and  evasive  it  will  be  construed  most  st'-ongly  against  the 
garnishee  ;  {(/)  but  although  it  may  not  be  strictly  sufficient, 
it  will  prevail,  unless  exceptions  are  taken  to  it  by  demurrer 
or  otherwise,  (r) 

A  ground  of  defense  proved  by  a  garnishee  will  not  avail, 
however  just  in  itself,  unless  it  is  consistent  with  the  allega- 
tions of  his  answer.  (5) 

Garnishee  may  deduct  demands^  etc. — The  statute  pro- 
vides, that  "every  garnishee  shall  be  allowed  to  retain  or 
deduct  out  of  the  property,  effects  or  credits  in  his  hands 
all  demands  against  the  plaintiff,  and  all  demands  against 
the  defendant,  of  which  he  could  have  availed  himself  if  he 
had  not  been  summoned  as  garnishee,  (whether  the  same 
are  at  the  time  due  or  not,)  and  whether  by  way  of  set-off 
on  a  trial,  or  by  the  set-off  of  judgments  or  executions  be- 
tween himself  and  the  plaintiff  and  defendant  severally; 
and  he  shall  be  liable  for  the  balance  only  after  all  mutual 
demands  between  himself  and  the  plaintiff  and  defendant 
are  adjusted,  not  including  unliquidated  damages  for 
wrongs  and  injuries  :  Provided,  that  the  verdict  or  finding, 
as  well  as  the  record  of  the  judgment,  shall  show  in  all 
cases,  against  which  party,  and  the  amount  thereof,  any 
set-off  shall  be  allowed,  if  any  such  shall  be  allowed."  (/) 

(n)   I  Starr  &  Curtis'  An.  Stat.  1223;  Rev.  Stat.  (1877)  530;  10  Bradw.  525. 

{0)  12  111.  358;  1  Gilm.  584;  40  111.  402.  See  70  111.  168;  61  III.  26;  85  lU. 
'521  ;  82  111.  295  ;  88  111.  43;  92  111.  229. 

(/)   I  Gilm.  86;  13  111.  697;  12  111    358;  115  111.  390. 

{(])  46  111.  293  ;  96  111.  580. 

(r)  48  111.  402. 

{s)  40  111.  150. 

(/)  I  Starr  &  Curtis'  An.  Stat.  1225;  Rev.  Stat,  (1877)  530;  27  111.  352;  I 
Bradw.  399. 


ATTACHMENT.  643 


Other  claimants  to  effects  in  hands  of  garnishee,  etc. 

Where  a  garnishee  charges  himself  with  a  sum  of 
money,  against  which  he  claims  a  set-off,  he  must  show  the 
extent  of  his  claim,  or  state  facts  from  which  the  court  can 
determine  the  amount.  It  would  be  a  fraud  upon  creditors 
to  permit  a  debtor  to  place  his  property  be3'ond  their  reach, 
by  depositing  it  with  another  person,  to  be  held  nominally 
for  future  services  or  advances,  (u) 

Where  property  has  been  placed  in  the  hands  of  a  per- 
son, to  secure  him  against  loss  by  reason  of  his  becoming 
surety  for  another,  such  property  is  a  pledge,  and  the  per- 
son to  whom  it  is  pledged  may  retain  it  until  his  liability  as 
a  surety  is  extinguished,  (v) 

A  garnishee  can  not  protect  himself  by  merely  answer- 
ing that  whatever  debt  he  owes,  or  may  owe,  was  assigned 
before  the  service  of  process  on  him.  The  good  faith  of 
the  assignment  must  be  made  to  appear.  It  seems  that  the 
alleged  assignee  may  be  required  to  appear,  on  notice 
given  by  the  garnishee,  and  show  that  the  transaction  was 
genuine  ;  and  that  if  he  should  fail  to  do  so,  a  judgment 
against  the  garnishee  would  be  a  defense  to  any  suit  brought 
against  him  by  such  assignee,  {w) 

Other  claimants  of  effects  in  the  hands  of  garnishees. — 
"If  it  appears  that  any  goods,  chattels,  choses  in  action, 
credits  or  effects  in  the  hands  of  a  garnishee  are  claimed 
by  any  other  person,  by  force  of  an  assignment  from  the 
defendant,  or  otherwise,  the  court  or  justice  of  the  peace 
shall  permit  such  claimant  to  appear  and  maintain  his  right. 
If  he  does  not  voluntarily  appear,  notice  for  that  purpose 
shall  be  issued  and  served  on  him  in  such  manner  as  the 
court  or  justice  shall  direct. 

"If  such  claimant  apjiears,  he  may  be  admitted  as  a 
]xirty  to  the  suit,  so  far  as  respects  his  title  to  the  property. 


(u)  46  111.  293. 

(r)  1  Gilm.  86.     See  52  111.  370,  96  III.  389. 

(w)  24  111.  320.     See  2  Bradw.  162;  86  111,  233;  73  111.  469. 


644  ATTACHMENT. 


Garnishee  may  contest  proceeding — What  is  subject  to  garnishment,  etc. 

in  question,  and  may  allege  and  prove  any  facts  not  stated 
or  denied  by  the  garnishee,  and  such  allegations  shall  be 
tried  and  determined  in  the  manner  hereinbefore  provided. 
If  such  person  shall  fail  to  appear  after  having  been  served 
with  notice  in  the  manner  directed,  he  shall  nevertheless  be 
concluded  by  the  judgment  in  regard  to  his  claim."  (a-) 

Garnishee  may  contest  legality  of  proceeding. — A  gar 
nishee  may  inquire  into  the  legality  and  regularity  of  the 
previous  proceedings  against  the  defendant  in  attachment, 
in  order  to  show  that  they  were  unauthorized  and  void,  (j) 

What  IS  subject  to  garnishment. — Equitable  interests  in 
choses  in  action  can  not  be  reached  by  process  of  garnish- 
ment ;  {z)  nor  can  there  properly  be  such  process  against  a 
debtor  of  a  garnishee  against  whom  an  execution  has  been 
returned  "no  property."  {a) 

As  a  general  rule,  money  in  the  custody  of  the  law,  or 
in  the  hands  of  an  officer  of  the  law,  is  not  subject  to 
process  of  garnishment.  {IS)  Thus  money  in  the  hands 
of  a  sheriff,  which  has  been  made  on  execution,  or  received 
in  redemption  of  land  sold  on  execution  ;  [c]  or  money  in 
the  hands  of  a  school-treasurer,  and  due  to  a  school- 
teacher ;  {d)  or  money  in  the  hands  of  the  clerk  of  a 
court,  (^)  or  an  administrator, — (/*)  can  not  be  reached  by 
process  of  garnishment.  But  whenever  the  liability  of  an 
officer  becomes  changed,  from  an  official  to  a  personal  one, 
he  is  amenable  to  this  process ;  (^)  as  where  there  is  a 

(jc)  I  Starr  &  Curtis'  An.  Stat.  1225  ;  Rev.  Stat.  (1877)  531 ;  86  III.  233;  6 
Biadw.  216. 

{y)   12  111.  358,     See  25  111.  63  ;  29  111.  9;  19  Bradw.  185. 

(s)   15  III.  89.     See  12  111.   170;  16  111.  385;  49  111.  522. 

(a)  54  111.  319;   19  Ala.  135.     See  87  111.  107. 

[U)  43  111.  112 ;  59  111.  21  ;  64  111.  376. 

(c)  12  111.  358;  33  111.  510;  47  111.  235;  3  Scam.  4575  17  VU  193;  8  Mass. 
246 ;  3  Cal.  363 ;  I  Ohio,  275  ;  89  111.  469. 

{d)  43  111.  112;  10  N.  H.  96;  59  111.  21. 

(e)  7  Humph.  132. 

(/;   10  Miss.  374;   2  Bradw.  162. 

'^g)  47  111.  235;  38  111.  510;  43  111.  112;  12  111.  35S. 


ATTACHMENT.  645 


Non-resident  garnishees,  etc. 


surplus  in  a  sheriff's  hands,  after  satisfying  an  execu- 
tion ;  {h)  or  where  a  special  master  holds  funds  which  have 
been  ordered  by  the  court  to  be  paid  to  the  debtor.  (/) 

A  municipal  corporation  is  not  liable  to  the  process  of 
garnishment,  no  matter  what  may  be  the  character  of  the 
debt ;  and  where  such  a  corporation  is  summoned  as  a  gar- 
nishee, it  may  be  discharged  on  mere  motion,  and  without 
answer,  at  any  time  after  process  served.  (/)  But  a  pri- 
vate corporation,  unlike  a  municipal  corporation,  being 
created  lor  private  purposes,  assumes  the  same  duties  and 
liabilities  as  a  private  individual,  {k) 

The  wages  of  a  defendant,  being  the  head  of  a  family,  to 
an  amount  not  exceeding  fifty  dollars,  is  exempt  from  garnish- 
ment. 

"No  person  shall  be  liable  as  a  garnishee  by  reason  of 
having  drawn,  accepted,  made  or  indorsed  any  negotiable 
instrument,  when  the  same  is  not  due,  in  the  hands  of  the 
defendant  at  the  time  of  service  of  the  garnishee  summons 
or  the  rendition  of  the  judgment."  {m) 

A  stockholder  in  an  incorporated  company,  who  owes  the 
company  unpaid  stock,  upon  which  a  call  has  been  made  and 
notice  given,  is  liable  to  be  garnisheed  on  a  judgment  recov- 
ered against  the  company.  («) 

Non-resident  garnishee. — "  If  any  garnishee  shall  be- 
come a  non-resident,  or  shall  have  gone  out  of  this  state,  or 
is  concealed  within  this  state  so  that  the  scire  facias  can  not 
be  served  upon  him,  upon  the  plaintiff  or  his  agent  filing 
affidavit,  as  in  cases  of  non-resident  defendants  in  attach- 
ment, such  garnishee  may  be  notified  in  the  same  manner 

(/z)  12  III.  358  J  12  Bradw.  450. 
(0  47  HI.  23s. 

(y)  45  111.  iii\  25  111.  595;  8  Md.  102 ;  II  Mo.  59;  64  Til.  376;  12  Bradw. 
450 ;  I  Bradw.  399. 

{k)  45  111.  133;  2  Bradwell,  360 ;  81  111.  534. 

(/)  Laws  1879,  p.  176;  Bradwell's  Ed.  135. 

(w)  1  Starr  &  Curtis'  An.  Stat.  1226;  Rev.  Stai.  (1S77)  531 ;  78  11'.  598. 

(n)  89  111.  48. 


646  ATTACHMENT. 

Conditional  judgment,  etc. — Final  judgment,  etc. 

as  such  non-resident  defendants,  and  upon  such  notice 
being  given  he  may  be  proceeded  against  in  the  same 
manner  as  if  he  had  been  personally  served  with  such  scire 
facias.^''  {n) 

Conditional  Judgment. — "When  any  person  shall  have 
been  summoned  as  a  garnishee  upon  any  attachment  or 
other  writ  issued  out  of  any  court  of  record,  or  by  any  jus- 
tice of  the  peace,  and  shall  fail  to  appear  or  make  dis- 
covery, as  by  this  act  required,  the  court  or  justice  of  the 
peace  may  enter  a  conditional  judgment  against  such  gar- 
nishee for  the  amount  of  the  plaintift''s  demand,  or  judg- 
ment against  the  original  defendant,  and  thereupon  a  scire 
facias  shall  issue  against  such  garnishee,  returnable,  if  the 
proceedings  be  in  a  court  of  record,  at  the  next  term  of 
court,  or  if  it  be  before  a  justice  of  the  peace,  within  the 
same  time  as  other  summonses  from  justices  of  the  peace, 
commanding  such  garnishee  to  show  cause  why  such  judg- 
ment should  not  be  made  final.  If  such  garnishee,  being 
served  with  process  or  notified  as  required  by  law,  shall 
fail  to  appear  and  make  discovery  in  the  manner  aforesaid, 
the  court,  or  justice  of  the  peace,  shall  confirm  such  judg- 
ment, to  the  amount  of  the  judgment  against  the  original 
defendant,  and  award  execution  for  ihe  same  and  costs.  If 
such  garnishee  shall  appear  and  answer,  the  same  proceed- 
ings may  be  had  as  in  other  cases."  [o) 

Pinal  judgment . — "  No  final  judgment  shall  be  entered 
against  a  garnishee  in  any  attachment  proceeding  until  the 
plaintifl"  shall  have  recovered  a  judgment  against  the  de- 
fendant in  such  attachment."  (^) 

In  a  case  whe^-e  service  had  been  had  on  the  garnishee, 
a  conditional  judgment  rendered,  interrogatories  filed,  a 
scire  facias  serwed^  and,  the  garnishee  failing  to  answer, 

(;?)   I  Starr  &  Curtis'  An.  Stat.  1224;   Rev.  Stat.  (1S77)  530. 

[0)  lb.     See  75  111.  544 ;  72  111.  487 ;  59  111.  139  ;  85  111.  521. 

(/)   I  Starr  &  Curtis'  An.  Stat.  1225  ;    Rev.  Stat.  (1S77)  531 ;  9  Bradw.  362. 


ATTACHMENT.  647 


Death  of  garnishee — Effect  of  judgment — When  debt  is  not  due,  etc. 


final  judgment  was  rendered,  it  was  held  that  it  was  dis- 
cretionary in  the  court  to  set  aside  the  judgment,  and  a  re- 
fusal to  do  so  could  not  be  assigned  for  error,  {q) 

The  proper  practice,  in  respect  to  garnishees,  is  to  enter 
a  judgment  against  the  garnishee,  in  favor  of  the  defend- 
ant in  the  attachment  or  execution,  for  the  benefit  of  such 
attaching  and  judgment  creditors  as  are  entitled  to  share 
in  the  proceeds.  If  the  judgment  exceeds  what  is  due 
to  such  creditors,  the  excess  will  be  for  the  benefit  of  the 
defendant  in  the  attachment  or  execution,  (r) 

Death  of  garnishee — representative  made  -party. — "In 
case  of  the  death  of  a  person  served  as  garnishee,  his  ex- 
ecutor or  administrator  may  be  made  a  party,  and  notified, 
unless  his  appearance  is  entered,  as  in  the  case  of  the  death 
of  a  defendant,  and  the  cause  may  proceed  against  him  as 
personal  representative  of  the  deceased."  (s) 

Effect  0/  judgment  against  garnishee. — "The  judgment 
against  a  garnishee  shall  acquit  him  of  all  demands  bj^  the 
defendant  for  all  gopds,  effects  ^nd  credits  paid,  delivered 
or  accounted  for  by  the  garnishee  by  force  of  such  judg- 
ment. 

"  If  the  person  summoned  as  garnishee  is  discharged, 
the  judgment  shall  be  no  bar  to  an  action  brought  against 
him  by  the  defendant  for  the  same  demand."  (/) 

When  debt  is  not  due,  execution  stayed. — "  When  judg- 
ment is  rendered  against  any  garnishee,  and  it  shall  ap- 
pear that  the  debt  from  him  to  the  defendant  is  not  yet  due, 
execution  shall  not  issue  against  him  until  twent}'  days 
after  the  same  shall  become  due,  unless  the  party  asking 
the  same,  or  his  agent,  shall  make  oath  that  he  believes 


[q]  34  111.  459. 

{r)  II  III.  511 ;  26  111.  50;  75  111.  544;  78  111.  598;  86  III.  233. 

{s)  I  Starr  &  Curtis'  An.  Stat.  1226;  Rev.  Stat.  (1877)  531  ;  6  Bradw.   216 

(/)  lb.;  79  111.  2S4;  81  111,  446.    See  21  111.  App.  Ct.  277, 


648  ATTACHMENT. 


Goods  in  garnishee's  hands  to  be  given  up,  etc. 


the  debt  will  be  lost  unless  execution  issue  forthwith,  in 
which  case  execution  shall  issue  as  soon  as  said  debt  to  de- 
fendant is  due  ;  but  no  sale  of  property,  under  such  execu- 
tion, shall  take  place  until  after  the  expiration  of  twenty- 
days  from  date  of  judgment."  (?^) 

Goods,  etc.,  in  garnishee's  hands  to  be  given  up,  and 
sold,  etc. — "  When  any  garnishee  has  any  goods,  chattels, 
choses  in  action,  or  effects  other  than  money,  belonging  to 
the  defendant,  or  which  he  is  bound  to  deliver  to  him,  he 
shall  deliver  the  same,  or  so  much  thereof  as  may  be 
necessary,  to  the  officer  who  shall  hold  the  execution  in 
favor  of  the  plaintiff  in  the  attachment  suit  or  judgment, 
which  shall  be  sold  by  the  officer,  and  the  proceeds  ap- 
plied and  accounted  for  in  the  same  manner  as  other  goods 
and  chattels  taken  on  execution. 

"When  it  shall  appear  that  such  goods,  chattels,  choses  in 
action  or  effects  in  the  hands  of  a  garnishee  are  mortgaged, 
or  pledged,  or  in  any  wa}^  liable  for  the  payment  of  a  debt 
to  him,  the  plaintiff  may  Ije  allowed,  under  an  order  of  the 
court  or  justice  of  the  peace  for  that  purpose,  to  pay  or 
tender  the  amount  due  to  the  garnishee ;  and  he  shall 
thereupon  deliver  the  goods,  chattels,  choses  in  action  and 
effects,  in  the  manner  before  provided,  to  the  officer  who 
holds  the  execution. 

"If  the  goods,  chattels,  choses  in  action  or  effects  are 
held  for  any  purpose  other  than  to  secure  the  paj^ment  of 
money,  and  if  the  contract,  condition,  or  other  thing  to  be 
performed,  is  such  as  can  be  performed  by  the  plaintiff 
without  damage  to  the  other  parties,  the  court  or  justice  of 
the  peace  may  make  an  order  for  the  performance  thereof 
by  him.  Upon  such  performance  or  a  tender,  the  gar- 
nishee shall  deliver  the  goods,  chattels  and  effects  in  the 
manner  before  provided,  to  the  officer  who  holds  the  exe- 
cution. 


[it)   I  Starr  &  Curtis'  An.  Stat.  1226;  Rev.  Stat.  (1877)  531 ;  12  Bradw.  450. 


ATTACHMENT.  6^9 

Goods  in  garnishee's  hands  to  be  given  up,  etc. 

"All  goods,  chattels,  choses  in  action  and  effects  re- 
ceived by  the  officer  under  either  of  the  two  preceding 
sections,  shall  be  sold  and  disposed  of  in  the  same  manner 
as  if  they  had  been  taken  on  an  execution  in  any  other 
mfinner,  except  that  from  the  proceeds  of  the  sale  the  officer 
shall  repay  the  plaintiff"  the  amount  paid  by  him  to  the 
garnishee  for  the  redemption  of  the  same,  with  interest 
thereon,  or  shall  indemnify  the  plaintiff"  for  any  other  act 
or  thing  by  him  done  or  performed  pursuant  to  the  order 
of  the  court  or  justice  of  the  peace  for  the  redemption  of  the 
same. 

"When  it  shall  appear  that  any  garnishee  has  in  his 
hands,  or  under  his  control,  any  goods,  chattels,  choses  in 
action  or  effects,  belonging  to  or  which  he  is  bound  to  de- 
liver to  ihe  defendant,  with  or  without  condition,  the  court 
or  justice  of  the  peace  ma}^  make  an}^  and  all  proper  or- 
ders in  regard  to  the  deliver}'"  thereof  to  the  proper  officer, 
and  the  sale  or  disposition  of  the  same,  and  the  discharging 
of  any  lien  thereon,  and  may  authorize  the  garnishee  to 
sell  any  sujh  property,  or  collect  any  choses  in  action,  and 
account  for  the  proceeds  thereof;  or,  if  the  proceeding  be 
in  a  court  of  record,  the  court  may  appoint  a  receiver  to 
take  possession  of  and  sell,  collect,  or  otherwise  dispose  of 
the  same,  and  make  all  orders  in  regard  thereto  which  may 
be  necessary  or  equitable  between  the  parties. 

"If  any  ga»*nishee  refuses  or  neglects  to  deliver  any 
goods,  chattels,  choses  in  action  or  effects  in  his  hands, 
when  thereto  lawfully  required  by  the  court  or  justice  of 
the  peace,  or  officer  having  an  execution  upon  which  the 
same  may  be  received,  he  shall,  if  the  proceeding  be  in  a 
court  of  record,  be  liable  to  be  attached  and  punished  as 
for  a  contempt,  or  the  court  may  enter  up  judgment  for  the 
amount  of  the  plaintiff"'s  judgment,  and  award  execution 
thereon  against  the  garnishee ;  or,  if  the  proceeding  be 
before  a  justice  of  the  peace,  be  liable  to  the  plaintitV  for 


650        ATTACHMENT  OF  WATER  CRAFTS. 

For  what  liens  given. 

the  full  amount  of  his  judgment  against  the  defendant,  and 
judgment  may  be  entered  against  him  therefor. 

"  Nothing  contained  in  this  chapter  shall  prevent  the 
garnishee  from  receiving  [selling]  anj'-  goods,  chattels, 
choses  in  action  or  effects  in  his  hands  for  the  payment  of 
any  •  demand  for  which  they  are  mortgaged,  pledged,  or 
otherwise  liable,  at  any  time  before  the  amount  due  to  him 
is  paid  or  tendered,  if  such  sale  would  be  authorized  as 
between  him  and  the  defendant."  {v) 

Costs  in  proceedings  against  garnishees. — "The  court 
or  justice  of  the  peace  may  order  the  costs  of  the  proceed- 
ings in  any  garnishment  to  be  paid  by  the  plaintiff,  or  out 
of  the  effects  and  credits  garnisheed,  or  by  the  garnislree, 
or  may  apportion  the  same  as  shall  appear  to  be  just  and 
equitable.  The  garnishee  shall  be  entitled  to  fees,  the 
same  as  witnesses  before  the  same  courts  in  civil  cases."  [tv) 

Attachment  of  Water  Crafts. 

For  zuhat  liens  given. — The  statute  of  Illinois  {a)  provides 
(§  i),  "That  every  sail  vessel,  steamboat,  steam  dredge,  tug 
boat,  scow,  canal  boat,  barge,  lighter,  and  other  water  crafts 
of  above  five  tons  burthen,  used  or  intended  to  be  used  in 
navigating  the  waters  or  canals  of  this  State,  or  used  in  trade 
and  commerce  between  ports  and  places  within  this  State,  or 
having  their  home  port  in  this  State,  shall  be  subject  to  a  Hen 
thereon,  which  lien  shall  extend  to  the  tackle,  apparel  and 
furniture  of  such  craft,  as  follows : 

First — For  all  debts  contracted  by  the  owner  or  part  OAvner, 
master,  clerk,  steward,  agent  or  shipshusband  of  such  craft, 
on  account  of  supplies  and  provisions  furnished  for  the  use 
of  such  water  craft,  on  account  of  work  done  or  services  ren- 
dered on  board  of  such  craft  by  any  seaman,  master,  or  other 
employee  thereof,  or  on  account  of  work  done  or  materials 
furnished  by  mecnanics,  tradesmen  or  others,  in  and  about  the 

(«)  I  Starr  &  Curtis'  An,  Stat.  334;  Rev.  Stat.  (1S77)  155;  34  III.  4S1;  102 
111.  249;  105  111.  462;  107  III.  606. 


ATTACHMENT  OF  WATER  CRAFTS.        651 

Lien — Limitation — Petition. 

building,  repairing,  fitting,  furnishing  or  equipping  such  craft. 

Second — For  all  sums  due  for  wharfage,  anchorage  or  dock 
hire,  including  the  use  of  dry  docks. 

Third — For  sums  due  for  towage,  labor  at  pumping  out  or 
raising,  when  sunk  or  disabled,  and  to  shipshusband  or  agent 
of  such  water  craft,  for  disbursements  due  by  the  owner  on 
account  of  such  water  craft. 

Fourth — For  all  damages  arising  for  the  non-performance 
of  any  contract  of  affreightment  or  of  any  contract  touching 
the  transportation  of  property  entered  into  by  the  master, 
owner,  agent  or  consignee  of  such  water  craft,  where  any  such 
contract  is  made  in  this  State. 

Fifth — For  all  damages  arising  from  injuries  done  to  per- 
sons or  property  by  such  water  craft,  whether  the  same  are 
aboard  said  vessel  or  not,  where  the  same  shall  have  occurred 
through  the  negligence  or  misconduct  of  the  owner,  agent, 
master  or  employee  thereon  ;  but  said  craft  shall  not  be  liable 
for  any  injury  or  damage  received  by  one  of  the  crew  from 
another  member  of  the  crew." 

Lien  on  goods  for  freight. — The  statute  (§  2)  gives  a  lien 
upon  the  goods,  etc.,  shipped  upon  any  such  water  craft  for 
sums  due  for  freight,  advanced  charges  and  demurrage,  which 
may  be  collected  by  attachment. 

(§  3.)  Limitation. — The  lien  may  be  enforced  at  any  time 
within  five  years  ;  Provided,  no  creditor  shall  be  allowed  to 
enforce  such  lien  as  against,  or  to  the  prejudice  of  any  other 
creditor  or  subsequent  incumbrancer,  or  boiia  fide  purchaser, 
unless  the  lien  is  enforced  within  nine  months. 

(§  4.)  Petition. — "  The  person  claiming  to  have  a  lien  may 
file  with  the  clerk  of  any  court  of  record  of  competent  juris- 
diction in  the  county  where  any  such  water  craft  may  be 
found,  a  petition  setting  forth  the  nature  of  his  claim,  the 
amount  due,  after  allowing  all  payments  and  just  off-sets,  the 
name  of  the  water  craft,  the  name  and  residence  of  each  owner 
known  to  the  petitioner  ;  and  when  any  owner  or  his  place  ot 


652        ATTACHMENT  OF  WATER  CRAFTS. 

Forms  of  Petitions. 

residence  is  not  known  to  the  petitioner,  he  shall  so  state,  and 
that  he  has  made  inquiry  and  is  unable  to  ascertain  the  same ; 
which  petition  shall  be  verified  by  affidavit  of  the  petitioner  or 
his  agent  or  attorney.  If  the  claim  is  upon  an  account  or 
instrument  in  writing,  a  copy  of  the  same  shall  be  attached  to 
the  petition," 


^<^'  303-     Petition  for  an  attachment  against  a  water  craft,  {b) 


In  the 


■  Court. 

Term,  A.  D.  18—. 

Court  of  the  county  of ,  in 


To  the  Honorable 

the  State  of  Illinois: 

The  Petitioner,  A.  B.,  of,  etc.,  respectfully  represents — 
That  C.  D.,  who  resides  at,  etc.  {^giving  the  residence),  is  the 
owner  of  a  certain  water  craft  of  above  five  tons  burthen,  called 

the  " ;"  is  justly  indebted  to  the  petitioner  in  the  sum 

of dollars,  after  allowing  all  payments  and  just  off-sets, 

on  account  of,  etc.  {liere  ijtsert  the  nature  of  the  claini)\  for 
which  the  petitioner  claims  a  lien  upon  such  water  craft,  pur- 
suant to  the  provisions  of  the  statute  of  this  State.  He  there- 
fore prays  for  an  attachment  of  such  water  craft. 


A.  B. 


ss. 


State  of  Illinois, 

County  of 

A.  B.,  on  oath   states,  that  the  foregoing 
subscribed,  is  true  in  substance  and  in  fact. 

Subscribed  and  sworn,  etc. 


petition  by  him 
A.  B. 


If  the  owner  or  his  place  of  residence  is  not  known  to  the 
petitioner,  and  he  has  been  unable,  upon  inquiry,  to  ascertain 
the  same,  the  following  form  may  be  sufficient : 

No.  304.  Petition  for  attachment  against  a  water  craft  where 
the  name  of  the  owner  is  unknown, 

{Title  of  court,  and  address,  as  in  last  precedent^ — 
The  petitioner  A.  B,,  of,  etc.,  respectfully  represents — 
That  he  performed  services  as   an  engineer  on  board  of  a 

water  craft,  named  the  "  Water  Witch,"  from  the day  of 

18—,    until    the  —  day  of 18—;  {or  stating  any 


{i>)  See  I  Scam.  150;  55  111.  425;  52  111.  373;  45 


111.  504. 


ATTACHMENT  OF  WATER  CRAFTS.        653 

Notice — Intervening  creditors. 
other  claim);  for  which  he  is  justly  entitled  to  the  sum  of- 


dollars,  after  allowing  all  payments  and  just  off-sets ;  that  the 
name  of  the  owner  or  owners  of  such  water  craft,  or  his  or 
their  place  of  residence  is  or  are  unknown  to  the  petitioner; 
that  he  has  made  inquiry  and  is  unable  to  ascertain  the  same. 
That  the  petitioner  claims  a  lien  upon  said  water  craft,  and 
prays  for  an  attachment  of  such  water  craft,  in  pursuance  of 
the  statute  of  this  State.  '  A.  B. 

{Add  affidavit?) 

(§  5.)  The  petitioner,  or  his  agent  or  attorney,  is  required 
to  file  with  the  petition  a  bond  in  at  least  double  the  amount 
of  the  claim,  as  required  by  the  statute. 

The  6th  section  of  the  statute  provides  for  the  issuing  of 
attachment.  The  7th  section  prescribes  the  form  of  the  writ, 
and  the  8th  section  directs  how  the  writ  shall  be  executed  and 
returned. 

(§  9.)  "  Whenever  any  such  writ  shall  be  issued  and 
served,  no  other  attachment  shall  issue  against  the  said  water 
craft,  unless  the  first  attachment  is  discharged,  or  the  vessel 
is  bonded." 

Notice  by  publication.  (§  10.)  "  Upon  return  being  made  to 
such  court,  unless  the  vessel  has  been  bonded,  as  hereinafter 
provided,  the  clerk  shall  immediately  cause  notice  to  be  given, 
in  the  same  manner  as  required  in  other  cases  of  attach- 
ment." [b) 

The  notice  shall  contain,  in  addition  to  that  required  in 
other  cases  of  attachment,  a  notice  to  all  persons  to  intervene 
for  their  interests  on  a  day  certain,  or  that  said  claim  will  be 
heard  ex  parte,'" 

Intervening  creditors.  (§  ii.)  "Any  person  having  alien 
upon  or  any  interest  in  the  water  craft  attached,  may  inter- 
vene to  protect  such  interest,  by  filing  a  petition  as  herein- 
after provided,  entitled  an  intervening  petition  ;  and  any  per- 
son  interested   may  be   made  a  defendant  at  the  request  of 

(b)  See  ante  626. 


654        ATTACHMENT  OF  WATER  CRAFTS. 

Bonding  vessel — Answer,  etc. — Default. 

himself,  or  any  party  to  the  suit,  and  may  defend  any  petition 
by  filing  an  answer  as  hereinafter  provided,  and  giving  secur- 
ity satisfactory  to  the  court,  to  pay  any  costs  arising  from 
such  defense;  and  upon  the  filing  of  any  intervening  petition, 
a  summons,  as  hereinafter  provided,  shall  issue  ;  and  if  the 
same  shall  be  returned  not  served,  notice  by  publication  may 
be  given  as  aforesaid  ;  and  several  intervening  petitioners 
rnay  be  united  with  each  other,  or  the  original,  in  one  notice." 
By  section  12,  an  intervening  petitioner  is  required  to  file 
a  bond,  as  in  case  of  an  original  attachment.  Section  13  pro- 
vides that  intervening  petitions  may  be  filed  at  any  time  be- 
fore the  vessel  is  bonded,  or  if  not  bonded,  before  order  of 
distribution.  And  by  section  14,  all  liens  which  shall  not  be 
filed  before  sale  under  decree  or  judgment,  shall  cease. 

Bonding  vessel. — Under  section  15,  the  owner,  or  his  agent 
or  attorney,  or  any  person  mterested  in  the  craft,  desiring  a 
return  thereof,  by  giving  proper  notice,  etc.,  may  bond  said 
vessel  and  have  the  same  returned. 

Appraiseinefit — Restitution  —  Sale. — The  owner,  etc.,  may 
have  the  vessel  appraised  under  section  16,  and  by  depositing 
the  appraised  value,  or  giving  bond,  may  have  restitution,  and 
if  such  claimant  shall  decline  any  such  application,  or  neglect 
within  twenty  days  to  accept  the  appraisement  and  make  de- 
posit, or  give  bond,  or  if  the  property  seized  shall  be  liable  to 
decay,  depreciation  or  injury  from  delay,  the  court  may  order 
the  same  sold,  and  the  proceeds  brought  into  court  to  abide 
the  event  of  the  suit. 

By  section  17,  the  clerk  is  required,  upon  receiving  a  bond 
or  deposit,  to  issue  an  order  of  restitution,  and  under  the  i8th 
section  additional  security  may  be  required  from  the  claimant, 
if  that  already  given  is  insufficient,  etc.,  upon  proper  showing 
a.nd  notice.  And  the  court  is  authorized  to  enforce  all  orders 
made  in  reference  thereto  by  attachment  for  contempt,  etc. 

Anszver —  Affidavit  of  merits  —  Default.  —  (§  19.)  "  Within 
three  days  after  the  return  day  of  such  summons — if  person- 


ATTACHMENT  OF  WATER  CRAFTS.       654.1 

Amendments — Judgments,  etc. — Distribution. 

ally  served  ten  days  before  the  first  day  of  the  term  to  which 
it  is  returnable,  or  if  not  personally  served,  then  within  the 
time  prescribed  in  the  published  notice — the  owner  or  any 
person  interested  adversely  to  the  claims  mentioned  in  the 
notice,  unless  on  cause  shown,  further  time  shall  be  allowed 
by  the  court,  shall  except  demur  or  file  his  answer  upon  oath 
or  afifirmation.  The  answer  shall  be  full  and  distinct  to  each 
alleo^ation  of  the  petition,  but  such  answer  shall  not  have  the 
effect  of  a  sworn  answer  in  chancery  as  evidence.  At  the  time 
of  filing  an  exception,  demurrer  or  answer,  an  affidavit  of  the 
claimant,  or  his  agent  or  attorney,  shall  be  filed,  stating  that  the 
claimant  has  a  good  defense  upon  the  merits.  And  in  case  no 
such  exception,  demurrer  or  answer,  together  with  such  affidavit 
of  merits,  be  filed  ivithin  the  time  above  specified,  the  petition- 
er shall  be  entitled  to  a  default,  and  the  demand  may  beproved 
and  judgment  rendered  as  in  other  cases." 

Amendments. — (§  20.  Amendments  are  allowed  as  in  other 
cases. 

judgments — Order  of  sale. — Sections  21  and  22  provide  the 
manner  in  which  judgments  shall  be  rendered.  Section  23 
and  24  for  an  order  of  sale,  and  the  proceedings  thereon.  And 
section  25  for  the  making  of  a  bill  of  sale  and  what  it  shall 
recite,  and  its  effect  as  evidence. 

Distribution. — Sections  26,  27  and  28,  relate  to  the  distribu- 
tion of  the  money  realized  by  the  proceeding : 

I  St.  To  pay  all  costs  ;  2d,  to  pay  seaman's  wages  due  upon 
the  last  two  voyages,  or  if  shipped  by  the  month,  the  last  two 
months  ;  and  3d,  all  other  claims  filed  prior  to  the  order  of 
distribution  on  which  decree  of  judgment  has  been  rendered 
in  favor  of  complainants,  together  with  whatever  balance  may 
be  due  seamen.  The  disposition  of  any  surplus  or  remnants 
is  provided  for. 

As  to  the  constitutionality  of  the  statute,  see  the  authori- 
ties noted  below,  [i) 

(i)  4  Wall.  41 X,  555  ;  46  111.  504;  4  Wheat.  438;  10  lb.  42S;  li  Pet.  175; 
12  How.  457;  20  lb.  296;  119  U.  S.  3^8. 


654b      ATTACHE  ENT  OF  WATER  CRAFTS. 

Conflict  of  jurisdiction,  etc. — Prior  liens. 

Co7iflict  of  jurisdiction,  etc. — Prior  Liens. 

yitrisdiction  of  State  and  Federal  Courts. — The  jurisdiction 
of  the  United  States  District  Courts  on  the  lakes  and  navigable 
waters  connecting  the  same,  is  governed  by  the  act  of  Congress 
of  February  3, 1845,  and  ^^  not  exclusive,  but  is  concurrent  with 
such  remedies  as  may  be  given  by  the  State  laws.  A  mari- 
time lien  does  not  arise  on  a  contract  for  materials  and  sup- 
plies furnished  to  a  vessel  in  her  home  port ;  and  in  respect 
to  such  contracts,  it  is  competent  for  the  State  legislatures  to 
create  such  liens  as  they  may  deem  just  and  expedient,  not 
amounting  to  a  regulation  of  commerce,  and  to  enact  rea- 
sonable rules  and  regulations  for  their  enforcement.  The 
proceedings  by  attachment  given  by  the  statutes  of  Illinois 
against  water  crafts  to  enforce  liens  as  provided,  have  no 
resemblance  to  libels  in  the  courts  of  admiralty,  but  are 
of  the  same  character  as  ordinary  suits  in  attachment.  (7) 

Prior  liens. — An  attaching  or  judgment  creditor  cannot  ac- 
quire any  interest  or  right  in  the  property  seized,  against  the 
interests  of  a  bona  fide  lien  holder,  such  lien  being  prior  in 
time  to  the  levy  of  the  attachment  or  rendition  of  the  judg- 
ment. A  prior  mortgage  on  a  water  craft,  duly  recorded,  has 
precedence  of  a  lien  of  a  material  man  or  an  employee,  sub- 
sequently acquired,   iji) 

(J)  62  111.  221  ;  47  111.  335;  46  111.  504;  7  Wall.  624;  57  111.   168;  119  U. 

S.  388.     , 

[/:■)  62  111.  230;  lb.  221  ;   57  111.  168. 


SCIRE  FACIAS.  6:,s 


Nature  of  the  writ,  etc. 


CHAPTER  XIV. 


SCIRE     FACIAS. 


A  scire  facias  is  a  writ  founded  upon  some  record ;  and 
its  office  is  to  make  known  to  the  defendant  some  matter, 
of  which  he  has  a  right  to  be  informed,  and  to  afford  nim 
an  opportunity  to  show  cause  why  a  certain  step  should  not 
be  taken  against  him. 

"The  scire  facias  against  a  bail,  against  pledges  in  re- 
plevin, to  repeal  letters  patent,  or  the  like,  is  an  original 
proceeding  :  but  when  brought  to  revive  a  judgment  after 
a  year  and  a  day,  or  upon  the  death  or  marriage  of  the 
parties,  when  in  the  latter  case  one  of  them  is  a  woman, 
or  when  brought  on  a  judgment  quando,  etc.,  against  an 
executor,  it  is  but  a  continuation  of  the  original  action."  [a] 

In  Illinois,  the  writ  is  considered  both  as  process  and 
declaration,  and  defects  therein  can  be  reached  by  demur- 
rer, {b)  Like  all  other  process,  it  should  run  in  the  name 
of  "  the  People  of  the  state  of  Illinois,"  and  if  it  does  not 
it  is  void  on  its  face  :  and  the  objection  can  be  raised  by 
general  demurrer,  though  the  more  proper  mode  is  by 
motion  to  quash  the  writ,  (c) 

A  dissolution  of  a  corporation,  for  cause  of  forfeiture, 
may  be  effected  by  scire  facias,  where  such  corporation  i* 
a  legal,  existing  body,  but  has  been  guilty  of  an  abuse  of 
the  power  intrusted  to  it.  {d) 

{a)  2  Bouv.  Die.  499.     See  i  T.  R.  3S8;  Bac.  Abr.  Ex.  H. 

{l>)  I  Scam.  231  ;  20  111.  509.  See  Rev.  Stat.  (1S77J  737;  16  III.  171  ;  17 
111.  172;  78  111.  78;  86  111.  176. 

(,<:)  20  HI.  509.     See  2  Gilm.  670;  5  Gilm.  96. 
(d)  3  T.  R.  132.     See  32  111.  110. 

42 


656  SCIRE  FACIAS. 


To  make  party  to  judgment — Against  garnishees. 


To  make  farty  to  judgment. — The  statute  of  Illinois 
provides,  that  "  if  a  summons  or  ca-pias  is  served  on  one 
or  more,  but  not  on  all  the  defendants,  the  plaintiff  may- 
proceed  to  trial  and  judgment  against  the  defendant  or  de- 
fendants on  whom  the  process  is  served,  and  the  plaintiff 
may,  at  any  time  afterwards,  have  a  summons  in  the  nature 
of  scire  facias,  against  the  defendant  not  served  with  the 
first  process,  to  cause  him  to  appear  in  said  court,  and  show 
cause  why  he  should  not  be  made  a  party  to  such  judg- 
ment; and  upon  such  defendant  being  duly  served  with 
such  process,  the  court  shall  hear  and  determine  the  mat- 
ter in  the  same  manner  as  if  such  defendant  had  been  orig- 
inally summoned  or  brought  into  court,  and  such  defendant 
shall  also  be  allowed  the  benefit  of  any  payment  or  satis- 
faction which  may  have  been  made  on  the  judgment  before 
recovered,  and  the  judgment  of  the  court  against  such  de- 
fendant shall  be  that  the  plaintiff  recover  against  such 
defendant,  together  with  the  defendant  in  the  former  judg- 
ment, the  amount  of  his  debt  or  damages,  as  the  case  may 
be."  {c) 

In  Illinois,  a  writ  of  attachment  may  issue  in  aid  of  a 
sci7'c  facias  to  make  a  person  party  to  a  judgment,  upon 
the  same  terms  as  in  other  cases  mentioned  in  the  attach- 
ment-act. {f) 

A  scire  facias  to  make  a  party  to  a  judgment  is  not  an 
original  action.  Such  writ  may  issue  at  any  time,  without 
an  order  of  court,  (^g)  The  plaintiff  may  wait  until  -it  is 
found  that  the  amount  of  the  judgment  can  not  be  made 
of  the  defendant  against  whom  judgment  has  been  ren- 
dered, {h 

Scire  facias  against  garnishees. — The  statute  of  Illinois 
provides,  that  when  any  person  shall  have  been  summoned 

{e)  2  Starr  &  Curtis'  An.  Stat.  1779;  Rev.  Stat.  (1877)  735;  78  111.  339- 
(/)  I  Starr  &  Curtis'  An.  Stat.  323;  Rev.  Stat.  (1S77)  IS^S  3  Scam,  547- 
\g)  3  Scam.  499,  547  ;  78  111.  339  ;  9  Bradvv.  383. 
{h)  26  111.  66. 


SCIRE  FACIAS.  657 

To  revive  judgment. 


as  a  garnishee  upon  any  attachment,  or  other  writ  issued 
out  of  a  court  of  record,  and  shall  fail  to  appear  or  make 
discovery,  as  required  by  the  statute,  the  court  may  enter 
a  conditional  judgment  against  such  garnishee  for  the 
amount  of  the  plaintiff's  demand,  or  of  the  judgment 
against  the  original  defendant ;  and  thereupon  a  scire 
facias  shall  issue  against  such  garnishee,  returnable  at  the 
next  term  of  court,  commanding  such  garnishee  to  show 
cause  why  such  judgment  should  not  be  made  final.  (/) 

Scire  facias  to  revive  judgment. — A  judgment  of  a 
court  of  record  may  be  revived  by  scire  facias^  or  an  ac- 
tion of  debt  may  be  brought  thereon.  (/)  "  Judgment  in 
any  court  of  record  in  this  State  may  be  revived  by  scire  fa- 
cias, or  an  action  of  debt  may  be  brought  thereon  within 
twenty  years  next  after  the  date  of  such  judgment,  and  not 
after."  {Jc)  The  act  of  February  14,  1855,  which  provided 
that  an  administrator  de  bonis  tion,  or  with  the  will  annexed, 
might  revive,  in  his  own  name,  a  judgment  recovered  by  a 
deceased  executor  or  administrator,  [in)  is  repealed  by  the 
present  statute  of  wills,  {n) 

When  a  judgment  debtor  dies  after  the  expiration  of  the 
seven  years'  lien  provided  by  the  statute  of  Illinois,  his 
heirs,  to  whom  his  real  estate  descends,  can  not  be  divested 
thereof  except  in  the  mode  provided  by  law,  by  a  proceed- 
ing to  which  they  are  parties.  In  such  case,  the  creditor 
may  obtain  satisfaction  of  the  judgment,  out  of  such  real  es- 
tate, in  the  hands  of  the  heiis,  by  ^i-oce&dixnghy  scire  facias 
10  revive  the  judgment,  making  the  heirs  parties,  and  then 

(?)  I  Starr  &  Curtis'  An.  Stat.  1224;  Rev.  Stat.  (1877)  530-  See  75  111. 
544;  72  111.  4S7;  9  Bradw.  362  ;  85  111.   521. 

(7)  3  Bla.  Com.  421.     See  2  Gilm.  117;  35  111.  326;  3  Biadw.  590. 
{k)  2  Starr  &  Curtis'  An.  Stat.  1559 ;  Rev.  Stat.  (1877)  644;  82  111.  435. 
(w)  Gross'  Stat.  811. 
(n)  Rev.  Stat.  (1877)  969. 


653  SCIRE  FACIAS. 


Prcecipe — Writ  o?  set.  fa.  to  revive  judgment. 


suing  out  an  execution  upon  the  judgment  of  revival,  and 
having  the  realty  sold,  {o) 

Precipe  ^o?'  a  scire  facias  to  revive  a  judgment. 

In  the Court.  "'■ 

A.  B.  ^ 
vs.      /■  Assumpsit. 

C.  D.  )  The  clerk  of  the  said  court  will  issue  a  scire 
facias,  against  the  said  C.  D.,  to  revive  the  judgment  ren- 
dered in  this  behalf  against  him,  in  the  said  court,  in  ths 

term,  18 — ;  such  writ  to  be  directed  to  the  sheriff  of 

the  county  of ,  and  returnable  to  the  next  term  of  the 

said  court, 

{Date.) 

E.  F.,  Attornev  for  Plaintiff. 

To  L.  M.,  Clerk,  etc. 

No.  305.     Scire  facias  to  revive  a  judgment. 

The  People  of  the  state  of  Illinois,  to  the  sheriff  of  the 
county  of ,  greeting  : 

Whereas  A.  B.  heretofore,  in  our Court  of  the  said 

county  of ,  in  the term  thereof,  in  the  year  .18 — , 

to. wit,  on,  etc.,  in  the  same  year,  by  the  consideration  and 
judgment  of  the  same  court  recovered  against  C.  D.,  in  a 

certain  action  of ,  the  sum  of dollars,  damages, 

(^r  "  the  sum  of  dollars,  debt,  and  the   further  sum 

of dollars,  damages  for  the  detention  thereof,"  ac- 
cording to  the  record^)  and  also  the  costs  of  the  said  A.  B. 

in  that  behalf,  taxed  at  the  sum  of  dollars,  whereof 

the  said  CD.  was  convicted,  as  appears  to  us  of  record : 
And  now  on  the  behalf  of  the  said  A.  B.  we  have  been  in- 
formed, that  although  judgment  be  given  as  aforesaid,  yet 
execution  of  the  damages  {or  "debt,  damages")  and  costs 
aforesaid  still  remains  to  be  made  to  him ;  wherefore  the 
said  A.  B.  has  besought  us  to  provide  him  a  proper  remedy 
in  this  behalf  We  do  therefore  command  you,  that  you 
make  known  to  the  said  CD.  that  he  be  before  our "said.. 
Court,  at  the  court-house  in  -r ,  in  the  county  afore- 
said, on  the Monda}^  of  next,  to  show  cause,  if 

any  he  have,  why  the  said  A.  B.  ought  not  to  have  execu- 

(o)  35  111.  326;  2  Gilm.  117. 


SCIRE  FACIAS.  659 

On  mortgages. 

tion  against  him  the  said  C.  D.  of  the  damages  {or  "debt, 
damages")  and  costs  aforesaid,  according  to  the  form  and 
effect  of  the  said  recovery  :  And  .have  you  there  then  this 
writ. 

Witness,  R.  S.,  clerk  of  our  said   court,  and   the  seal 

r         -,     thereof,  at  aforesaid,  this day  of , 

^         -■     m  the  year  18 — . 

R.  S. 

See  a  scire  facias  against  heirs  and  terre-tenants,  35  111. 
377- 

It  is  not  necessary  that  a  scire  facias  to  revive  a  judg- 
ment should  show  that  no  execution  issued  within  one  year 
after  the  rendition  of  the  judgment,  {-p) 

Where  a  judgment  has  been  obtained  by  the  People,  it 
is  not  essential  that  execution  should  issue  within  the  year, 
in  order  to  authorize  the  issuing  of  execution  after  that 
time,  {q)  But  a  scire  facias  \v\W.  lie  on  such  judgment, 
notwithstanding  execution  could  issue  thereon  at  the  same 
time,  ir) 

Foreclosure  of  moiigage. — It  is  provided  in  section  18  of 
the  chapter  entitled  "Mortgages,"  that 

"  If  default  be  made  in  the  payment  of  any  sum  of  money 
secured  by  mortgage  on  lands  and  tenements,  duly  executed 
ftnd  recorded,  and  if  the  payment  be  by  installments,  and  the 
last  shall  have  become  due,  it  shall  be  lawful  for  the  mort- 
gagee, his  assigns,  or  his  or  their  executors  or  administra- 
tors, to  sue  out  a  writ  o{ scire  facias  from  the  clerk's  office  of 
the  circuit  court  of  the  county  in  which  the  said  mortgaged 
premises  may  be  situated,  or  any  part  thereof,  directed  to  the 
sheriff  or  other  proper  officer  of  any  county  or  counties  where 
the  defendants,  or  any  of  them,  may  reside  or  be  found,  re- 
quiring him  to  make  known  to  the  mortgagor,  or,  if  he  be 
dead,  to  his  heirs,  executors  or  administrators,  to  show  cause, 
if  any  they  have,  why  judgment  should  not  be  rendered  for 

(/)  46III.  372. 

[q)  4  Scam    404 ;   46  111.  372. 
(T)  46  III.  372. 


o6o  SCIRE  FACIAS. 

On  mortgages. 


such  Sum  of  money  as  may  be  due,  by  virtue  of  said  mort- 
gage ;  and  upon  the  appearance  of  the  party  named  as  a  de- 
fendant in  said  writ  of  scire  facias  the  court  may  proceed  to 
judgment  as  in  other  cases,  but  if  sd,\d  scire  facias  be  returned 
nihil,  or  that  the  defendant  is  not  found,  an  alias  scire  facias 
may  be  issued."  {s) 

Prior  to  the  amendment  of  the  section  quoted  by  the  re- 
vision of  1874,  an  assignee  of  a  mortgage  could  not  have  a 
scire  facias  thereon  in  his  own  name  ;  {t)  but  the  assignment 
of  a  note  and  mortgage  did  not  prevent  a  foreclosure  by  this 
proceeding  in  the  name  of  the  mortgagee  for  the  use  of  the 
assignee,  the  proceedings  being  upon  the  record  of  the  mort- 
gage, and  not  upon  the  note. 

Jurisdiction  of  foreclosure  by  a  scire  facias  rests  upon  a 
mortgage  duly  executed  and  recorded  ;  and  is  not  impaired 
by  a  destruction  of  the  record,  {u) 

The  relation  of  a  mortgagor  and  mortgagee  is  not  termi- 
nated by  such  proceedings  until  the  time  of  redemption  ex- 
pires and  the  foreclosure  is  complete ;  nor  can  the  purchaser 
maintain  a  possessory  action  until  the  expiration  of  the  period 
for  redemption,   {v) 

As  has  been  seen  from  the  section  quoted,  the  remedy  by 
scire  facias  to  foreclose  a  mortgage,  is  now  given  by  statute  to 
the  "  mortgagee,  his  assigns,  his  or  their  executors  or  admin- 
istrators." It  is  not  essential  to  the  right  of  an  assignee  of 
the  mortgage  to  foreclose  by  this  remedy  that  the  assignment 
should  be  acknowledged,  {vv) 

The  wife  of  the  mortgagor,  if  she  joined  in  the  mortgage, 

{s)  2  Starr  cS:  Curtis'  An.  Stat.  1642;   Rev.  Stat.  (1877J  677. 

{t)  31  111.    18S  ;  44  111.  37;  57  111.  45;  55  111.  376. 

(?/)   63  111.   181. 

(z/)   63  111.  424. 

{vv)  109  111,  103.     See  I02  111.  14S  ;  31  Penn.  St.  143. 


SCIRE  FACIAS.  66i 


Writ  of  set.  fa.  on  mortgage. 


should  be  made  a  party  defendant,  in  order  to  bar  her 
equity  of  redemption  and  right  of  dower,  {tv) 

The  proceeding  by  scire  facias,  for  a  foreclosure,  is  a 
proceeding  at  law,  and  is  governed  by  the  practice  of 
courts  of  law,  and  not  of  courts  of  equity.  None  but  the 
mortgagor,  or,  in  case  of  his  death,  his  heirs,  executors 
or  administrators,  should  be  made  parties  defendant.  As- 
signees in  bankruptcy,  subsequent  purchasers  and  mort- 
gagees, etc.,  are  bound  to  take  notice  of  the  proceeding, 
and  failing  to  do  so,  their  rights  are  not  protected,  (a:) 

Two  returns  of  nihil  are  in  general  equivalent  to  a  serv- 
ice ;  ( y)  and  this  rule  applies  in  scire  facias  on  a  mort- 
gage, {z) 

This  remedy  applies  only  to  mortgages  made  to  secure 
the  payment  of  money.  It  does  not  extend  to  mortgages 
made  to  secure  the  delivery  of  specific  articles  of  property, 
or  the  performance  of  other  acts.  («) 

The  proceeding  is  in  rem,  to  enforce  a  specific  Hen,  and 
is  not  for  the  purpose  of  obtaining  a  judgment  in  -personam. 
The  judgment  only  directs  the  sale  of  the  mortgaged  prop- 
erty, to  satisfy  the  debt  and  costs,  and  is  not  a  lien  on  an}- 
other  property.  (<5) 

No.  306.     Scire  facias  on  a  mortgage,  {c) 

The  People  of  the  state  of  Illinois,  to  the  sheriff  of  the 
county  of ,  greeting  : 

Whereas  C.  D.  and  E.  D.,  his  wife,  on,  etc.,  by  their 
deed  of  that  date,  duly  executed,  did  grant,  bargain,  sell 
and  convey  to  A.  B.,  his  heirs  and  assigns,  a  certain 
parcel  of  land,  situate  in  the  county  aforesaid,  to  wit,  {Jicre 

(ty)  44  111.  37;   I  Scam.  475- 
(*)  26  111.  507  ;  4  Gilm.  57. 

(j)  Yelv.  112;   I  Cow.  70;  4  Blackf.   iSS;  2  Binn.  40;  3  Gilm.  327;   15 
111.  440;  19  111.  63;  26  111.  507.     See  47  111.  422. 
{z)  Breese,  2S. 
(rt)  13  111.  543. 

(c)  14  111.  213;  26  111.  162.     See  25  111.  89;  23  111.  4Sa 
(c)  See  I J  111.  213;  2  Sc«iii.  iS;  20  111.  509. 


662  SCIRE  FACIAS. 


Writ  of  set.  fa-  on  mortgage. 


describe  the  land) ;  to  hav^  and  to  hold  the  same,  with  its 
appurtenances,  unto  him  the  said  A.  B.,  his  heirs  and  as- 
signs, forever ;  and  did  thereby  also  release  unto  him  and 
his  heirs  and  assigns  all  right  of  homestead  of  them  the 
said  C.  D.  and  E.  D,  in  the  said  parcel  of  land ;  3'et  upon 
the  condition,  that  if  the  said  C.  D.,  his  heirs,  executors  or 
administrators,  should  well  and  truly  pay,  or  cause  to  be 
paid,  to  the  said  A.  B.,  his  heirs,  executors,  administrators 

or  assigns,  the  sum  of dollars, after  the 

date  aforesaid,  with  interest  thereon  at  the  rate  of per 

centum  per  annum,  according  to  the  tenor  and  effect  of  a 
certain  promissory  note  of  the  said  C.  D.,  of  the  dRte ^rs^ 
aforesaid,  then  the  said  deed  should  be  void,  otherwise 
should  remain  in  full  force  :  as  by  the  record  of  the  said 
deed,  remaining  in  the  office  of  our  recorder  of  deeds  for 
the  county  aforesaid,  (in  which  office  the  said  deed  was  on, 
etc.,  duly  recorded,)  more  fully  appears.  And  whereas 
we  are  informed  by  the  said  A.  B.  that  default  has  been 
made  in  the  payment  of  the  said  sum  of  money,  with  the 
interest  thereof  as  aforesaid,  and  that  the  same,  with  such 
interest,  is  in  arrear  and  unpaid,  contrary  to  the  form  and 
effect  of  the  said  condition  of  the  deed  aforesaid.  (*)  We 
do  therefore,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided,  command  you,  that  you  make 
known  to  the  said  C.  D.  and  E.  D.  that  they  be  before  our 

Circuit  Court,  at  the  court-house  in  ,  in  the  county 

aforesaid,  on  the Monday  of nexi,  to  show  cause, 

if  any  they  have,  why  judgment  should  not  be  rendered 
against  them  in  favor  of  the  said  A.  B.,  for  such  sum  of 
money  as  may  be  due  by  virtue  of  the  said  deed  :  And 
have  you  there  then  this  writ. 

Witness,  R.  S.,  clerk  of  our  said  court,  and  the  seal 
P  -,     thereof,  at aforesaid,  this day  of  , 

'-*'-'      in  the  year  18 — .  „ 

R.  o. 

If  the  scire  fucias  is  against  the  heirs,  etc.,  of  the  mort- 
gagor, insert,  at  the  asterisk  in  the  above  precedent,  an 
averment  like  the  following  :  "And  whereas  we  are  fur- 
ther informed  by  the  said  A.  B.  that  afterwards,  to  wit,  on, 
etc.,  the  said  C.  D.  departed  this  life,  intestate,  leaving  him 
surviving  the  said  E.  D.,  his  widow,  and  F.  D.  and  G.  D-, 
his  children  and  heirs  at  law;   and  that  O.  S.  was  there- 


SCIRE  FACIAS.  66 


o 


On  recosrnizances. 


upon,  by  the  County  Court  of  the  county  aforesaid,  ap- 
pointed administrator  of  the  estate  of  the  said  deceased." 
The  writ  will  then  proceed  to  command  the  sheriff  to  "  make 
known  to  the  said  E.  D.,  F.  D.,  G.  D.  and  O.  S.",  etc. 

It  is  sufficient  to  set  out  a  copy  of  the  mortgage,  with  the 
certificates  of  acknowledgment  and  recording  annexed, 
witliout  any  direct  allegation  that  the  mortgage  was  ac- 
knowledged or  recorded,  {d)  If  the  mortgage-debt  is  pay- 
able by  instalments,  the  writ  must  show  that  the  last  instal- 
ment has  become  due.  {e)  And  it  must  show  a  breach,  by 
non-payment  of  the  debt,  as  well  as  every  other  substantial 
matter  required  in  a  declaration.  If  it  fails  in  any  of  these 
respects,  it  is  obnoxious  to  a  demurrer.  [/) 

No.  307.     Another  form  of  scire  facias  on  a  mortgage. 

The  People  of  the  state  of  Illinois,  to  the  sheriff  of  the 
county  of ,  greeting  ; 

Whereas  on,  etc.,  a  certain  deed  of  mortgage  was  duly 
recorded  in  the  office  of  our  recorder  of  deeds  for  the  county 
aforesaid,  which  said  deed,  as  appears  to  us  by  the  record 
thereof,  remaining  in  the  said  office,  is  in  these  words  and 
figures,  that  is  to  say  :  (^Here  insert  a  copy  of  the  mort- 
gage-) 

And  whereas  we  are  informed  by  the  said  A.  B.  that  de- 
fault has  been  made  in  the  payment  of  the  sum  of  money 
and  interest  in  the  said  deed  mentioned,  and  that  the  same 
are  in  arrear  and  unpaid,  contrary  to  the  form  and  eflectof 
the  said  deed. 

We  do  therefore,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided,  command  you,  [as  in  the  last 
■prcccdetit,  to  the  end). 

On  recognizances. — The  statute  of  Illinois  provides,  that 
*'in  all  cases  of  bail  for  the  appearance  of  any  person  or 
persons  charged  with  any  criminal  offense,  the  security  or 

{d)  2  Scam.  17. 

(e)  I  Scam.  475 ;  25  111.  89.     See  2  Scam.  17. 

(/)  25  III.  89.     See  2  Scam.  17;  14  HI.  213. 


664  SCIRE  FACIAS. 


On  recognizances. 


any  of  them  may,  at  any  time  before  default  upon  the  bond  or 
recognizance,  surrender  the  principal  in  their  exoneration  or 
the  principal  may  surrender  himself  to  the  proper  officer. 

"  When  any  person  who  is  accused  of  any  criminal  offense 
shall  give  bail  for  his  appearance,  and  such  person  does  not 
appear  in  accordance  with  the  terms  of  the  recognizance,  the 
court  shall  declare  such  recognizance  forfeited,  and  the  clerk 
of  the  court  shall  thereupon  issue  a  scire  facias  against  such 
person  and  his  sureties,  returnable  on  the  first  day  of  the  next 
term  of  the  court,  to  show  cause  why  such  judgment  should 
not  be  rendered  against  such  person  and  his  sureties  for  the 
amount  of  the  recognizance,  which  scire  facias  shall  be  served 
by  the  sheriff  of  the  county  where  the  court  is  held,  upon  such 
person  and  his  sureties,  by  reading  the  same  to  the  defendants 
named  in  such  scire  facias,  at  least  five  days  before  the  first 
day  of  the  term  to  which  the  same  is  returnable,  and,  in  case 
the  person  aforesaid  cannot  be  found  by  the  sheriff,  he  shall 
make  return  of  that  fact  to  the  court.  The  court  shall,  there- 
upon, enter  judgment  by  default  against  the  defendants  for 
the  amount  of  the  recognizance,  unless  defendant  shall  appear 
and  defend  such  cause  ;  and  if  the  defendant  shall  appearand 
interpose  a  defense,  then  the  case  shall  be  tried  in  the  same 
manner  as  other  cases  of  a  like  nature,  after  any  such  recog- 
nizance shall  be  declared  forfeited  as  aforesaid.  Before  judg- 
ment, the  court  may,  in  its  discretion,  set  aside  such  forfeit- 
ure, upon  the  accused  being  brought  or  coming  into  court, 
and  showing  to  the  court,  by  affidavit,  that  he  was  unable  to 
appear  in  court  according  to  the  terms  of  the  recognizance, 
by  reason  of  sickness  or  some  other  cause  which  shall  satisfy 
the  court  that  the  accused  had  not  been  guilty  of  any  laches 
or  negligence:  Provided,  that  no  such  forfeiture  of  a  recogni- 
zance shall  be  set  aside  until  the  accused  shall  pay  the  costs 
of  such  recognizance."  {a) 

An  offer  to  pay  costs  is  not  a  literal  compliance  with  the 
statute  requiring  the  accused  to  pay  all  costs  made  on  the  re- 
cognizance before  a  default  is  set  aside  ;  and  even  if  the  court 

(«)  I  Starr  &  Curtis'  An.  Stat.  837;  Rev.  Stat.  (1877)  393.  See  76  111.  lOO, 
516;  77  111.  493  ;  12  Bradw.  380  ;  II  Bradw.  346. 


SlIRE  facias.  665 


Writ  of  sci.  fa.  on  recognizance. 


has  the  power  to  permit  the  costs  to  be  paid  after  the  entry  of 
a  motion  to  set  aside  the  forfeiture,  the  statute  has  made  the 
setting  aside  the  same  discretionary,  [b) 

A  recognizance,  conditioned  that  the  principal  shall  be  and 
appear  before  the  court,  etc.,  on  the  first  day  of  the  term  thereof 
to  be  holden  at,  etc.,  to  answer  unto  a  certain  crime  (stating 
it,)  and  abide  the  order  of  the  court,  and  not  depart  without 
leave,  requires  the  accused  to  appear  on  the  first  day  of  the 
next  term,  and  from  day  to  day  during  the  term,  and  from 
term  to  term,  and  from  day  to  day  of  each  term,  until  the 
final  sentence  or  order  of  the  court,  to  answer  the  specified 
charge.  And  a  forfeiture  may  be  declared,  even  though  two 
terms  may  have  elapsed  from  the  time  to  which  the  principal 
was  required  to  appear,  (c) 

No.  308.     Scire  facias  011  a  recognizance  made  in  open 
court,  after  indictment  found. 

The  People  of  the  state  of  Illinois,  to  the  sheriff  of  the 
county  of ,  greeting  : 

Whereas  heretofore,  in  the term  of  our Court 

of  the  said  county  of ,  in  the  year  18 — ,  C.  D.,  J.  K. 

and  L.  M.  personally  came  into  our  said  court,  and  then 
and  there  jointly  and  severally  acknowledged  themselves 

to  be  indebted  to  us  in  the  sum  of dollars,  to  be  levied 

of  their  respective  goods  and  chattels,  lands  and  tenements, 
as  the  law  directs ;  yet  upon  the  condition,  that  if  the  said 
C.  D.  should  personally  appear  before  our  said  court,  on 
the  first  day  of  the  then  next  term  thereof,  to  answer  to  a 

certain  indictment  therein  pending  against  him  for , 

and  should  not  depart  our  said  court  without  leave,  and 
should  abide  the  order  of  the  same  in  the  premises,  then 
the  said  recognizance  was  to  be  void,  and  otherwise  to  re- 
main in  full  force  :  as  by  the  record  of  the  said  recognizance, 
remaining  in   our  said  court,   more  fully   appears.     And 

whereas  afterwards,  in  the term  of  our  said  court,  in 

the  same  year,  [being  the  term  next  after  the  making  of 
the  said  recognizance  as  aforesaid,]  such  proceedings  were 
thereupon  had  in  our  said  court,  in  that  behalf,  that  the  said 
C.  D.  was  three  times  solemnly  called  in  open  court,  yet 

(i)  88  111.  335  ;  9  Bradw.  275. 
(c)  88  111.  335. 


666  SCIRE  FACIAS. 

On  recognizances — Observations. 

he  came  not,  but  made  default;  and  the  said  J.  K.  and 
L.  M.  were  each  then  and  there  likewise  three  times 
solemnly  called,  and  required  to  bring  into  court  the  body 
of  the  said  C.  D.,  yet  they  the  said  J.  K.  and  L.  M.  also 
made  default,  and  failed  to  bring  into  court  the  body  of  the 
said  C.  D.  ;  and  thereupon  it  was  then  and  there  considered 
and  adjudged  by  our  said  court  that  the  said  recognizance 
should  be  taken  for  and  declared  forfeited,  and  that  a  writ 
of  scire  facias  should  issue  in  that  behalf  against  the  said 
C.  D.,  J.  K.  and  L.  M.  :  as  b}^  the  record  and  proceedings 
thereof,  remaining  in  our  said  court,  more  fully  appears. 
We  therefore  command  you,  that  you  make  known  to  the 
said  C.  D.,  J.  K.  and  L.  M.  that  they  be  before  our  said 

Court,  at  the  court-house  in ,  in  the  said  county 

of ,  on  the Monday  of next^  to  show  cause, 

if  any  they  have,  why  execution  should  not  be  awarded 
against  them  upon  the  said  recognizance,  so  declared  for- 
feited as  aforesaid,  for  the  sum  of  money  therein  mentioned  ; 
And  have  3'ou  there  then  this  writ. 

Witness,  R.  S.,  clerk  of  our  said  court,  and  the  seal 

P         -|     thereof,  at  aforesaid,  this day  of , 

^    ■     'J     in  the  year  18 — . 

R.  S. 

See  the  cases  of  Vancilv.  The  People,  16  111.  120,  scire 
facias  on  a  recognizance  taken  by  a  sheriff;  Van  Blari- 
cum  V.  The  Peofle^  11  111.  86,  scire  facias  on  a  recogni- 
zance taken  by  a  sheriff  on  the  granting  of  a  supersedeas ; 
and  Gingrich  v.  The  Peo-ple,  34  111.  448,  scire  facias  on 
a  recognizance  taken  by  a  justice  of  the  peace. 

Two  returns  of  nihil,  in  scire  facias  on  a  recognizance, 
are  equivalent  to  actual  service.  (/) 

Before  the  passage  of  the  statute  of  Illinois  (act  of  1869) 
above  quoted,  a  judgment  could  not  properly  be  rendered 
against  both  the  principal  and  the  surety,  where  the  former 
had  not  been  served,  unless  there  had  been  two  returns  of 
nihil,  or  his  appearance  had  been  entered,  ij) 

A  writ  of  scire  facias  upon  a  recognizance  should  clearly 

in  3  Gilm.  337;  15  111.  440;  19  III.  63;  26  111.  507. 
U)  47  111-  422. 


SCIRE  FACIAS.  <       667 

Defenses. 

show  before  what  court  the  recognizance  was  entered  into, 
and  for  what  offense  the  principal  in  the  recognizance  was 
indicted  ;  also,  that  a  judgment  of  forfeiture  was  entered,  (k) 
It  must  be  sufficient  on  its  face  to  entitle  the  People  to  re- 
cover the  amount  of  the  recognizance,  or  it  will  be  obnox- 
ious to  a  demurrer.  (/)  An  indictment  need  not  be  set  out 
in  such  writ,  (m)  The  recognizance  may  be  stated  accord- 
ing to  its  legal  effect,  or  it  may  be  set  out  verbatim,  leaving 
the  court  to  decide  on  its  effect.  («)  Where  the  recogni- 
zance was  entered  into  before  a  justice  of  the  peace,  or 
other  officer,  and  not  in  open  court,  the  writ  should  show, 
by  proper  recitals,  that  the  recognizance  legally  became  a 
matter  of  record,  [o) 

A  scire  facias  on  a  recognizance  to  appear  from  day  to 
day,  until  discharged,  to  answer,  etc.,  is  good,  although  it 
does  not  show  that  any  indictment  was  found  against  the 
principal,  {■p) 

The  writ  should  issue  against  the  principal  and  the  sure- 
ties, and  not  against  the  sureties  alone,  {q) 

Where  a  scire  facias  recites  that  the  persons  before 
whom  the  recognizance  was  entered  into  were  justices  of 
the  peace  for  the  county  in  which  it  was  taken,  the  court 
will  presume,  on  demurrer,  that  the  charge  was  regularly 
preferred  and  examined,  and  the  proper  adjudication  made 
b}'  the  justices,  before  the  recognizance  was  acknowl- 
edged, if) 

Defenses  to  scire  facias. — A  scire  facias  is  considered, 
in  Illinois,  both  as  a  process  and  a  declaration  ;  and  if  de- 


{k)  13  111.  696.     See  14  III.  312;   15  111.  418;  20  III.  381 ;  50  111.  196. 

(0  16  111.  171. 

{m)  18  111.  405. 

(«)  17  111.  172. 

(o)  17  111.  252.     See  13  111.  9. 

(/)  39  111.  430;  41  111.  303,  456.     But  see  10  Bradw.  219. 

(7)   I  Gilm.  109;  53  111.  434.     See  18  111.  405. 

(r)   13  111.9.     See  15  III.  223. 


668'  SCIRE  FACIAS. 


Defenses. 


fect.ive,the  defendant  may  demur,  (;)  or  move  to  quash  the 
writ,  (s) 

The  defendant  may  plead  nul  ticl  record,  which  puts  in 
issue  the  existence  of  the  record  upon  which  the  proceeding 
is  based  ;  and  under  this  plea  he  may  take  advantage  of 
any  variance  between  the  record  produced  in  evidence  and 
the  one  recited  in  the  writj/)  See  the  form  of  this  plea  in 
debt,  ante.  No.  179,  and  the  remarks  thereunder. 

In  a  plea  in  bar  to  a  scire  facias,  (except  on  a  mortgage,) 
instead  of  actionem  non,  etc.,  the  defendant  says  that  the 
plaintiff  ought  not  to  have  execution  against  him,  etc. ;  and 
the  plea  concludes  with  a  prayer  of  judgment  if  the  plaint- 
iff ought  to  have  execution  against  him,  etc. 

To  a  scire  facias  on  a  judgment,  nothing  can  be  pleaded 
in  bar  which  might  have  been  pleaded  to  the  original 
action,  {ii)  nor  anything  contrary  to  the  title  on  which  the 
recovery  was  obtained,  or  which  shows  only  that  the  judg- 
ment was  erroneous  or  voidable  ;  (z;)  nor  can  the  defendant 
plead  the  pendency  of  a  writ  of  error  on  the  same  judg- 
ment, (w) 

To  a  scire  facias  on  a  mortgage,  the  defendant  can  not 
plead  usury,  {x)  or  a  total  or  partial  failure  of  consideration, 
or  a  want  of  consideration,  {y)  or  fraud,  as  it  is  said,  {z)  or 
a  set-off.  {a) 

So  a  plea  alleging  the  assignment  of  the  note  and  mort- 
gage to  a  third  person,  before  the  issuing  of  the  writ,  is  not 
a  good  plea  in  bar.  {b)     "The  mortgage,  being  recorded,  is 

(r)  I  Scam.  231  ;  20  III.  509. 

(s)  20  111.  509.  See  2  Gilm.  670 ;  5  Gilm.  96. 

\t)  86  111.  176;  58  111.  26;  21  111.  28;  81  III.  134. 

(«)  Cowp.  728;    I  S.-ilk.  315;   4  Mass.  21S;    12  Mass.  268;  8  Johns.  77. 
See  I  Chit.  PI.  427;  2  Ohio,  240;  4  Ohio,  397;   i  Paine,  652. 
iv)  Com.  Dig.  Plead.  3,  L.  10. 
(w)  4  Mod  247.     See,  cottlra,  Show.  S6;  Skin.  590. 
(*)  44  111.  47;  26  111.  162. 

[y)  I  Scam.  140;  14  111.  213;  23  111.  4S0;  48  111.  228, 
{z)  23  111.  480.     See  6  ISi^unf.  358;  13  Johns.  430;  5  Cow.  e,a6. 
(a)  14  111.  213. 
(*)  .S5  111-  M^- 


SCIRE  FACIAS.  669 


Defenses. 


treated  as  a  record,  importing  absolute  verity,  against 
which  nothing  in  the  shape  of  a  defense  can  be  averred, 
except  that  it  was  void  ab  initio^  and  never  a  valid  lien,  or 
that  it  has  been  discharged  or  released."  (c)  A  sch-e 
facias  on  a  mortgage  is  not  an  action,  {d) 

The  plea  of  11011  est  factum  is  not  a  good  plea  to  a  scire 
facias^  which  is  always  founded  on  a  record,  {e) 

It  may  be  shown,  in  defense  to  a  scire  facias  on  a  recog- 
nizance, that  the  performance  of  the  condition  was  rendered 
impossible  by  the  act  of  God,  or  of  the  law,  or  of  the  cog- 
nizee.  (_/")  But  where  the  sureties  in  a  recognizance 
pleaded  (i)  that  the  principal,  after  his  discharge  on  bail, 
and  before  the  term  of  the  court  at  which  he  was  bound  to 
appear,  without  their  knowledge  or  consent  enlisted  as  a 
private  in  the  military  service  of  the  United  States,  and 
was  ordered  into  another  state,  where  he  still  remained, 
under  military  authority,  not  at  liberty  to  surrender  himself, 
nor  could  his  sureties  arrest  and  surrender  him,  in  satisfac- 
tion of  the  recognizance,  and  that  they  could  not  procure 
his  custody  by  habeas  cor-pus  or  otherwise  ;  and  (2)  that  at 
the  time  of  the  taking  of  the  forfeiture,  and  for  a  long  time 
before,  the  principal  was,  and  at  all  times  since  had  been, 
in  another  state,  an(J  was  sick  and  disabled,  insomuch  that 
he  could  not  be  removed,  or  brought  and  surrendered  to 
the  court  or  any  officer  by  his  sureties,  without  great  dan- 
ger of  the  loss  of  his  life  ;  the  pleas  were  regarded  as  not 
presenting  any  good  defense.  It  was  held,  however,  that 
the  same  matters,  substantially,  set  forth  in  an  affidavit, 
showed  good  grounds  for  a  continuance.  (^) 

In  another  case,  the  surety  pleaded  that  the  principal  was 
in  the  service  of  the  United  States  at  the  time  he  was  ar- 


(c)  26  III.  162  ;  21  111    4S0;  44  111.  37. 
{d)  26  111.  162;  14  111.  213. 
(c)  31  111.  469;  44  111.  37. 

(/)  Co.  Lit.  206,  a;  Bac  Abr.,  tit.  Cond.  2;  12  III.  9;  2  Kelly,  331;  3 
Cow.  297;  10  B/adw.  219;  ti9  ill.  JG4. 

\s)  34  ni.  44S. 


670  SCIRE  FACIAS. 

Defenses. 

rested;  that  after  giving  bail  he  was  held  to  such  service, 
and  taken  by  the  military  authorities  to  another  state,  and 
was  prevented  by  reason  thereof  from  appearing  according 
to  the  terms  of  the  recognizance  ;  and  that  by  reason  of  his 
being  so  held  by  the  military  authorities,  in  another  state, 
it  was  out  of  the  power  of  the  surety  to  surrender  him,  and 
out  of  his  power  to  appear,  etc.  It  was  held,  on  demurrer, 
that  the  plea  was  bad,  and  that  the  principle  of  vis  major 
did  not  apply  in  such  a  case.  (Ji) 

But  in  Illinois,  the  death  of  the  principal  in  any  recogni- 
zance, after  forfeiture  thereof,  but  before  judgment  rendered 
upon  the  scire  facias  issued  thereon,  may  be  pleaded  by  the 
sureties,  in  discharge  of  such  recognizance,  (z*) 

A  plea  that  the  sureties  in  the  recognizance  surrendered 
their  principal  after  the  forfeiture  thereof,  and  before  the  issu- 
ing of  the  sire  facias  thereon,  is  bad  on  demurrer.  (7) 

The  plea  of  mil  tiel  recognizance  is  not  a  proper  plea  in  scire 
facias  upon  a  recognizance.  The  action,  being  upon  a  record, 
is  fully  met  by  the  plea  of  nul  tiel  record,  if) 

{Ji)  39  III.  241  ;  34  III.  448. 

(/)  12  III.  9;  I  Starr  &  Curtis'  An.  Stat.  84!;  Rev.  Stat.  (1877)  394;  74 
I.l.  292. 

(7)  89  111.  164. 
{k)  Si  111.  134. 


TilANDAMUS.  671 


Nature  of  the  writ — In  what  cases  awarded,  etc. 


CHAPTER   XV. 


MANDAMUS. 


A  WRIT  of  mandamus  is  a  command  issuing  in  the  name 
of  the  sovereign  authority,  from  a  superior  court  having 
jurisdiction,  and  is  directed  to  some  person,  corporation  or 
inferior  court,  within  the  jurisdiction  of  such  superior  court, 
requiring  them  to  do  some  particular  thing  therein  specified, 
whicli  appertains  to  their  office  and  duty,  and  which  the 
superior  court  has  previously  determined,  or  at  least  sup- 
poses, to  be  consonant  to  right  and  justice,  (a)  It  is  not  a 
writ  of  right,  but  is  only  granted  in  the  discretion  of  the 
court  to  which  the  application  for  it  is  made  ;  and  this  dis- 
cretion is  not  exercised  in  favor  of  the  applicant,  unless 
some  just  and  useful  purpose  may  be  answered  by  the 
writ,  ib) 

This  writ  was  introduced  to  prevent  disorders  from  a 
failure  of  justice  ;  and  therefore  it  ought  to  be  used  upon  all 
occasions  where  the  law  has  established  no  specific  remedy, 
and  where  in  justice  and  good  government  there  ought  to 
be  one.  (c)  It  is  not  generally  granted  for  the  purpose  of 
giving  an  easier  or  more  expeditious  remed}^ ;  but  where 

(a)  2  Bouv.  L.  D.  lOD;  20  Pick,  4S4;  21  Pick.  25S ;  Dudley,  3754  Humph. 
437 ;  85  111.  484. 

[b)  93  111.  133;  100  III.  137;  33  111.  9;  90  111.  150;  51  111.  39.  See  Tap. 
on  Mand.  165,  l66 ;  31  111.  97;  55  111.  178;  15  111.  501 ;  16  111.  547;  120  111. 
200;   no  111.  180. 

(0  3  Burr,  1267;  I  Term,  148;  i  Pick.  414;  4  Pick.  68;  10  Pick.  235;  7 
Mass.  340;  3  Binn.  273;  5  HaUt.  57;  Cooke,  160 ;  i  Wend.  31S;  5  Pet.  190; 
iCaines,  511;  12  Wend.  1S3 ;  8  Pet.  291  ;  12  Pet.  524;  7  Wheat.  534;  5 
Walts,  152;  3  Conn.  243;  3  Bla.  Com.  iio;   12  East,  429. 

43 


i 


672  MANDAMUS. 


In  what  cases  awarded,  etc. 


there  is  no  other  remedy,  (^)  being  both  legal  and  specific,  (<?) 
it  will  be  granted.  Where  the  law  has  given  another  spe- 
cific remedy,  the  writ  will  not  be  awarded.  (_/")  But  if  it 
is  doubtful  whether  there  is  another  effectual  Remedy,  (g-) 
or  the  court  does  not  see  its  way  clearly  to  one,  [/i)  the 
writ  will  be  granted. 

A  mandainus  can  only  be  awarded,  to  compel  a  person 
to  perform  an  act,  when  it  is  his  duty  to  do  so  without  it.  (/) 
If  it  is  doubtful  whether  the  person  has  by  law  a  right  to 
do  such  an  act  or  not,  the  writ  will  be  denied,  {j)  It  will 
not  be  granted  to  compel  the  governor  to  return  a  legisla- 
tive bill  to  the  secretary  of  state  ;  {Ic)  nor  to  compel  the  state 
treasurer  to  pay  a  warrant  in  gold  coin,  when  there  is  no 
gold  in  the  treasury,  belonging  to  the  particular  fund  on. 
which  the  warrant  is  drawn.  (/) 

Where  one  has  been  declared  elected  clerk  of  a  court,  a 
mandamus  will  be  awarded  to  compel  his  predecessor  to 
deliver  possession  of  the  office ;  but  the  right  to  the  perma- 
nent enjoyment  of  the  office  is  not  determined  in  such  pro- 
ceeding, {ill) 

A  mandainus  will  lie  to  compel  the  board  of  supervisors 
to  submit  the  question  of  subscription,  by  the  county,  to  the 

{d)  3  Term,  649;  3  B.  &  A.  223;  Tap.  on  Mand,  18;  50  111.  loi,  213;  46 
111.  415;   53  111.  424.     See  -^T,  111.  9;   20  Bradw.  457. 

{e)  8  East,  219;  2  Doug.  326;  I  Term,  396;  3  Salk.  22S.  See  20  111.  159; 
48  111.  233;  50  111.   100. 

(/)  I  Wend.  318;  10  Johns.  484;  I  Pet.  567;  Coleman,  117;  2  M'Cord, 
170;  Minor,  46;  2  Leigh,  165;  20  111.  525.      See  33  111.  9. 

{g)  I  N.  &  P.  4S0;  6  A.  &E.  355;  2  B.  &  Aid.  646;  48  III.  233.  See  51 
111.  39;  Breese,  104.     See  56  111.  365. 

iji)  7  A.  &  E.  260;  Tap.  on  Mand.  19;  25  III.  325. 

{i)  5  Gilm.  243;  33  111.  9;  45  111.  162;  46  III.  333.  384;  48  III.  233;  85 
111.  396;  71  III.  559;   70  111.  232;  66  III.  339  ;  109  III.  192. 

(y)  Breese,  104;  33  111.  9;  25  111.  325;  55  111.  95;  63  111.  394;  88  111. 
202;  16  Bradw.  305;   I18III.  239,  459. 

{k)  40  111.  126;   19  111.  229.     See  100  111.  472. 

(/)  38  111.  307.     See  58  111.  90;   15  Bradw.  545. 

(w)  25  III.  325.  See  15  111.  492;  Breese,  50  j  2  Pick.  397;  3  Mass.  287;  21 
Pick.  14S,  151. 


MANDAMUS.  673 


In  what  cases  awarded,  etc. 


Stock  of  a  railroad  company,  to  a  popular  vote,  in  accord- 
ance with  a  special  statute  ;  (n)  or  to  compel  a  municipal 
corporation  (o)  to  pay  the  amount  of  a  judgment  rendered 
against  it. 

A  clerk  of  a  court  may  be  compelled,  by  mandamus,  to 
administer  an  oath  of  office,  and  file  an  official  bond,  and 
deliver  a  commission  to  an  officer,  when  it  is  by  law  the 
duty  of  such  clerk  so  to  do.  (p)  And  it  is  the  proper  pro- 
ceeding against  an  ex-maj^or,  to  compel  him  to  deliver  to 
the  mayor  elect  the  seal,  books,  papers,  etc.,  of  the  corpo- 
ration, {q) 

A  mandamus  will  lie  to  command  a  circuit  judge  to  sign 
a  bill  of  exceptions,  w^hen  a  correct  one  is  presented  in  apt 
time  ;  {r)  or .to  compel  a  clerk  to  issue  an  execution ;  (5)  or 
an  officer  to  execute  a  deed  which  it  is  his  duty  to  exe- 
cute ;  (/)  oi?©verseers  of  the  poor  to  perform  their  duties  in 
respect  to^contracts  for  supporting  or  rendering  medical 
services  to  paupers  ;  {tC)  or  a  county  judge  to  make  an  order 
appointing^appraisers  to  assess  damages,  when  the  law  re- 
quires him  to  do  so  ;  iy)  or  commissioners  of  highways  to 
perform  4;heir  duties  in  regard  to  the  making  of  roads, 
etc.  {vj)  -It  is  not  a  proper  proceeding  to  try  the  question 
of  the  location  of  a  public  highway,  as  between  the  public 
and  the  landholders  over  whose  land  such  highway  is  to  be 
laid  out.  (^j . 

A  mandamus  is  the  proper  remedy  for  the  People,  where 

■  ?5r 

(n)  45III.  162;  loi  111.  151 ;  III  111.  124. 

ip)  50111.154,453;  48  111.  416;  50  111.  213;  87  III.  1S2;  82  III.  435;  61 
111.  115  ;  116  111.  305  ;  loi  111,  151 ;  107  111.  75. 

(/)  2iScaie.  486;  78  111.  375;  96  111.  503. 

{q)  15  111.  492;  2  Pick.  397;  Tap.  Maml.  94. 

(r)  2  Scam.  189,  253;  74  111.  253.  See  117  111.  5SS;  91  111.  87;  10 
Bradw.  17.- 

{s)  2  Scam.  362;  2  Bradw.  166. 

(/)  I  Gilm.  28;   109  111.  192;  16  Bradw.  347. 

(?<)  2  Gilm.  99. 

{v)  14  111.  353.     Seem  111,  253;  105  111  662. 
•      (w)  See  52  111.  49S;  31  111.  97;  57  111.  307;  S8  111.  141 ;   no  111.   iSo,  511. 

(j:)i6  111.  547.     See  31  111.  97;   in  111.  527. 


674  MANDAMUS. 


Jurisdiction. 


a  public  oflicer  refuses  to  perform  a  duty  required  of  him 
by  law.  (y) 

Where  the  law  imposing  a  duty  upon  a  municipal  cor- 
poration makes  the  performance  thereof  discretionary  with 
the  authorities  of  such  corporation,  a  writ  of  mandamus  to 
compel  such  performance  will  not  lie ;  but  if  there  is  no 
discretion  to  act,  it  is  otherwise,   {z) 

The  writ  of  mandamus,  when  it  is  used  to  place  a  person 
in  possession  of  an  office,  confers  no  right.  It  merely 
places  him  in  possession,  to  enable  him  to  assert  his  right, 
which  in  some  instances  he  could  not  otherwise  do.  {a) 
Where  a  person  is  in  possession  of  an  office,  and  exercising 
the  duties  thereof,  with  color  of  right,  a  mandamus  will  not 
be  awarded  ;  but  the  proper  remedy  of  the  claimant  is,  in 
the  first  instance,  an  information  in  the  nature  of  a  quo 
warranto,  by  which  the  rights  of  the  parties  may  be  tried,  [b) 

Where  a  petition  for  an  alternative  mandamus  is  against 
two  persons,  and  can  not  be  sustained  as  to  one,  it  must 
necessarily  be  denied  as  to  both,  {bb) 

It  is  not  granted  as  a  matter  of  absolute  right,  and  where 
it  can  be  seen  that  it  cannot  accomplish  any  good  purpose, 
or  that  for  which  it  is  sought,  it  will  be  denied,  [c) 

Jtirisdiciion. — The  Supreme  Court  {d)  and  the  respect- 
ive circuit  courts  of  Illinois  {e)  have  power  to  issue 
writs  of  mandamus ;  but  the  circuit  courts   can   not  issue 

[y)  3  Ind.  452  ;  46  111.  415 ;  loo  111.  137;  27  Miss.  225  ;  29  Penn.  St.  121; 
Moses  on  Maud.;  61  111.  490;   iiS  III.  113;   13  Biadw.  613. 

{z)  48  111.233;  Breese,  104;  20  111.  526;  29  111.  413;  85  111.  396;  5  Gihn. 
242;   I  Bradw.  82;   19  Bradw.  253;  iiS  111.  239. 

{a)  2  Ind.  423.     See  25  111.  325  ;  75  111.  185. 

(b)  Breese,  104;  17  111.  167;   29  111.  413.     See  next  chnpter. 
{bb)  40  111.  126,  "^ 

(c)  85  111.  484;  55  111.  95  ;  68  111.  121 ;  62  111.  510;  74  111.  27;  72  111.  212; 
66  111.  339;  62  111.  510;  90  111,  150. 

{d)  Sec.  2,  Art.  VI,  Const.     See  103  111.  139 ;   94  111.  5S7. 
(e  )   I  Starr  &.Curtis'  An.  Stat.  709;   Rev.  Slat.  (1877)  327. 


MANDAMUS.  67^ 


Who  to  be  relator — Demand  necessary — Requisites  of  petition. 


writs  to  operate  beyond  the  limits  of  their  respective  cir- 
cuits. (/) 

The  relator. — The  question  as  to  who  shall  be  the  re- 
lator (or  petitioner)  in  an  application  for  a  mandamus,  de- 
pends upon  the  object  to  be  attained  by  the  writ.  When 
the  remedy  is  resorted  to  for  the  purpose  of  enforcing  a 
private  right,  the  relator  must  be  the  person  interested  in 
having  the  right  enforced.  The  relator  is  considered  the 
real  party,  and  his  right  to  the  relief  must  clearly  appear. 
But  where  the  object  is  the  enforcement  of  a  public  right, 
the  People  is  regarded  as  the  real  part}',  and  the  relator 
need  not  show  he  has  any  legal  interest  in  the  result.  It 
is  enough  that  he  is  interested,  a-s  a  citizen,  in  having  the 
laws  executed,  and  the  duty  in  question  enforced.  (^) 

Demand  necessary . — Before  applying  for  a  mandamus, 
the  petitioner  should  make  an  express  and  distinct  demand 
or  request  of  the  defendant  to  perform  the  dut}''  or  particu- 
lar act  required  ;  and  there  must  be  a  refusal  by  the  de- 
fendant to  comply  with  such  demand,  either  in  direct  terms, 
or  b}^  conduct  from  which  a  refusal  can  be  conclusively 
implied.  {Ji) 

The  demand  may  be  made  by  the  petitioner,  or  by  some 
one  duly  authorized,  and  personally  upon  those  from  whom 
tlie  duty,  etc.,  is  required.  (/') 

Requisites  of  -petition. — The  petition  should  show, prima 
facie,  a  duty  and  obligation  on  the  part  of  the  defendant  to 
perform  the  act  required ;  {J)  and  it  should  also  show  a  de- 
mand upon  the  defendant,  and  a  refusal  b}^  him,  to  do  the 
thing  he  is  sought  to  be  compelled  to  do.  {k)     The   facts 

(/)  38  111.  20.     See  81  111.  446. 

is)  48  III.  233 ;  98  111.  635 ;  47  in.  256;  86  111.  613;  78  111.  382. 

(A)   107  111.  75.     See  87  111.  1S2;    117  111.  462. 

(i)  Tap.  on  Mand.   282. 

(/)  33  111-  9;   51  111.  17;  2  Bmdw.  166;  66  111.  507;   12  Pradw.  210. 

(A)  Moses  on  Mand.  204  j  9  Mich.  32S;  I  ID  111.  577;  109  111.  192;  96  111.  467. 


676  MANDAMUS. 


Illinois  statutes. 


and  circumstances  under  which  the  petitioner  claims  the 
relief  prayed,  should  be  set  forth  fully,  clearly  and  unre- 
servedly, and  not  inferentially ;  (/)  and  it  should  also  be 
shown  that  the  defendant  has  it  in  his  power  to  perform  the 
act  required  of  him.  (w) 

Chapter  87  of  the  Revised  Statutes  of  1874  {n\  entitled 
Mandamus,  is  as  follows : 

Summons. — Sec.  i.  "That  upon  the  filing  of  a  petition 
for  a  mandamus,  the  clerk  of  the  court  shall  issue  a  summons 
in  like  form  as  other  summons  in  suits  at  law,  commanding 
the  defendant  to  appear  at  the  return  term  thereof,  and 
show  cause  why  a  writ  of  mandamus  should  not  be  issued 
against  him.  If  the  summons  is  issued  in  vacation  it  shall 
be  returnable  on  the  first  day  of  the  next  term,  or  if  in  term 
time,  it  may  be  made  returnable  on  any  day  of  the  term  not 
less  than  five  days  after  the  date  of  the  writ." 

Default,  answer,  etc. — "  Sec.  2.  Every  defendant  who  shall 
be  served  with  summons  shall  be  held  to  show  cause  by 
answer  to  the  petition,  or  to  demur  thereto,  on  the  return 
day  of  the  summons,  or  within  such  further  time  as  may  be 
allowed  by  the  court ;  and  in  default  thereof,  judgment  may 
be  taken  nil  dicit,  and  a  peremptory  mandamus  shall  be 
allowed  against  the  defendant." 

Time  to  plead. — "  Sec.  3.  The  court  in  which  any  such 
petition  is  filed  may  allow  the  petitioner  or  any  defendant 
such  convenient  time  to  answer,  plead,  reply,  rejoin  or 
demur  as  shall  be  deemed  just  and  equitable."  {0) 

Pleadings. — "  Sec.  4.  The  petitioner  may  plead  to  or 
traverse  all  or  any  of  the  material  facts  contained  in  the 
answer,  or  demur  thereto,  to  which  the  defendant  shall 
reply,  take  issue  or  demur,  and  like  proceedings  shall  be 
had  as  in  other  cases  at  law." 

(/)   Moses  on  Man^.  205;   37  Penn.  S.  R.  277. 

(w)   Moses  on  Maiul.  205  ;   70  111.    232;    ill  111.  171;   I17  111.  462. 
(w)  2  Starr  &  Curtis'  An.  Slat.  1584-9;  Rev.  Stat.   (1877)    656.     See    57  HL 
142;  56  111.  327;   58  111.  90,  191 ;   57  111.  307;  62  111.  510. 
{0)  See  62  111.  510;  95  ill.  328;   12  Bradw.  210. 


MANDAMUS.  ^JJ 


Illinois  statutes. 


Judgment. — "  Sec.  5.  If  a  verdict  is  found  for  the  peti- 
tioner, or  judgment  is  given  for  him  upon  demurrer,  nil  dicit, 
or  for  want  of  an  answer  or  other  pleading,  he  shall  recover 
his  damages  and  costs,  and  a  peremptory  writ  of  uiandanius 
shall  be  granted.  If  judgment  is  given  for  defendant  he 
shall  recover  his  costs."  (/) 

False  return. — "  Sec.  6.  If  damages  are  recovered  against 
the  defendant,  he  shall  not  be  liable  to  be  sued  in  any  other 
action  or  suit,  as  for  making  a  false  return." 

New  defendants. — "  Sec.  7.  If,  after  the  filing  of  any  such 
petition,  any  other  person  than  the  original  defendant  shall 
appear  to  the  court  to  have  or  claim  any  right  or  interest  in 
the  subject  matter,  such  person  may  be  made  a  defendant, 
and  may  be  summoned,  and  appear  and  plead,  answer  and 
demur,  in  the  same  manner  as  if  he  had  been  made  defend- 
ant to  the  original  petition." 

Death  of  Defendant. — "  Sec.  8.  The  death,  resignation  or 
removal  from  office,  by  lapse  of  time  or  otherwise,  of  any 
defendant,  shall  not  have  the  effect  to  abate  the  suit,  but 
his  successor  may  be  made  a  party  thereto,  and  any  per- 
emptory writ  may  be  directed  against  him."  {f) 

Effect  of  other  remedy. — "  Sec.  9.  The  proceedings  for  a 
writ  of  mandamus  shall  not  be  dismissed,  nor  the  writ  denied, 
because  the  petitioner  may  have  another  specific  legal 
remedy  where  such  writ  will  afford  a  proper  and  sufficient 
remedy  ;  and  amendments  may  be  allowed  as  in  other  civil 
suits."  if) 

"Sec.  10  Appeals  and  writs  of  error  may  be  taken  and 
prosecuted  in  the  same  manner,  upon  the  same  terms,  and 
with  like  effect  as  in  other  civil  cases." 

For  other  Illinois  cases,  recently  decided,  see  note  below,  {s) 

(/)  See  54  111.  39;  3  Scam.  2S3  ;  52  111.  49S;  68  111.  154. 
\q)   See  17  Wall.  U.  S.  R.  604. 

r)  38  111.  348. 
( j)  66  111.  5Q,  339,  507  ;  68  111.  154  ;  55  HI-  95  ;  56  111.  365  ;  57  HI-  307  ;  60 
111.413;  61  111.  115,490;  62  111.510;  63111.207,374;  67111.62;  S7  111.  1S9. 


6/8  MANDAMUS. 


Petition. 


The  tenth  section  of  the  practice-act  of  1872  is  as  fol- 
lows : 

"  It  shall  not  be  necessary  hereafter,  in  any  action  of 
iiiandavius  or  qzio  -warranto,  to  set  out  the  cause  of  action 
in  the  writ,  but  it  shall  be  sufficient  to  summon  the  defend- 
ant in  a  summons  in  the  usual  form,  commanding  the  de- 
fendant to  appear  and  answer  the  plaintiff'  in  an  action  of 
mandamzts  or  quo  warranto,  as  the  case  may  be,  and  the 
issues  shall  be  made  up  by  answering,  pleading  or  de- 
murring to  the  petition  as  in  other  cases."  {p) 

No.  309.     Petition  for  a  mandamus. 

To  the  Circuit  Court  of  the  county  of ,  in  the  state 

of  Illinois. 

The  petitioner,  A.  B.,  of,  etc.,  complaining  shows,  that 
at  the  general   election  held   in  and   for  the  said  county 

of  ,  on   the  Tuesda}'^  next  after  the  first  Monday  of 

November,  in  the  year  18 — ,  he  was  a  candidate  for  the 
office  of  sheriff'  of  the  said  county,  and  received  the  high- 
est number  of  votes  for  that  office,  and  was  duly  elected 
thereto  ;  and  that  thereupon  the  county  clerk  of  the  county 
aforesaid,  on,  etc.,  made  out  and  delivered  to  the  petitioner 
a  certificate  of  his  election  to  the  said  office  of  sheriff"  as 
aforesaid ;  a  true  copy  of  which  siid  certificate,  marked 
Exhibit'  A,  is  annexed  to  and  made  a  part  of  this  petition. 
And  the  petitioner  further  shows,  that  within  seven  days 
after  the  said  election,  the  said  county  clerk,  with  the  as- 
sistance of  two  justices  of  the  peace  of  the  said  county, 
made  out  an  abstract  of  the  votes  cast  for  county  officers  at 
the  said  election  ;  and  that  thereupon  the  said  county  clerk, 
on,  etc.,  enveloped  and  sealed  up  a  copy  of  the  said  ab- 
stract, and  transmitted  the  same  to  the  secretary  of  state  tor 
the  said  state  of  Illinois,  who  afterwards,  on  or  about  the 
day  of,  etc.,  duly  received  the  same.  And  the  peti- 
tioner further  shows,  that  on  or  about  the  day  last  atore- 
said,  the  governor  of  the  said  state,  b}^  his  commission  under 
the  seal  of  the  said  state,  dul}^  commissioned  the  petitioner 
as  sherifiT  of  the  count}""  aforesaid,  to  continue  in  office  tor 
the  term  of  two  vears ;  which  said  commission  was  :here- 


(0)  2  Siarr  &  Curtis'  An.  Stat.  17S0;  Rev.  Stat.   \}'S>n)  735;  S6  111.  283. 


MANDAMUS.  679 


Petition. 


upon  transmitted  by  the  said  secretar}^  of  state  to  the  clerk 
of  the  said  Circuit  Court  of  the  county  aforesaid,  and  was 

on  or  about  the da}^  of,  etc.,  received  by  C.  D.,  who 

then  was,  and  from  thence  hitherto  has  been,  and  still  is, 
clerk  of  the  said  court ;  and  that  thereupon  the  said  C.  p., 
as  such  clerk,  on  the  same  day  gave  notice  to  the  petitioner 
of  the  receipt  of  his  said  commission.  And  the  petitioner 
further  shows,  that  within  thirty  days  after  receiving  the 
said  notice,  to  wit,  on,  etc.,  he  entered  into  a  bond,  bearing 
date  of  that  day,  with  the  People  of  the  said  state  of  Illi- 
nois, with  good  and  sufficient  security,  in  the  penal  sum  of 
ten  thousand  dollars,  conditioned  for  the  faithful  discharge 
of  all  the  duties  required  or  to  be  required  of  him  by  law, 
as  such  sheriff;  and  that  at  the  term  of  the  said  Circuit 
Court  next  after  the  date  of  the  said  bond,  and  within  thirty 
daN's  after  the  petitioner  received  notice  of  his  said  commis- 
sion as  aforesaid,  to  wit,  on,  etc.,  the  said  bond  was  [in  the 
said  court]  duly  approved  by  the  Honorable  L.  M.,  then 
judge  of  the  said  court ;  [as  by  the  record  of  the  said  ap- 
proval, remaining  in  the  said  court,  more  fully  appears;] 
a  true  copy  of  which  said  bond  [and  of  the  said  approval 
thereof  by  the  said  judge,  thereon  written,]  is  hereto 
annexed,  marked  Exhibit  B,  and  made  a  part  of  this  peti- 
tion. And  the  petitioner  further  shows,  that  afterwards,  on 
the  same  day,  but  after  the  adjournment  of  that  term  of  the 
said  court,  he  tendered  to  the  said  C.  D.,  so  being  such 
clerk  as  aforesaid,  at  his  office  in ,  in  the  county  afore- 
said, the  bond  above  mentioned,  [with  the  said  approval 
thereon  written,]  and  offered  to  take  and  subscribe  before 
him  the  oath  of  office  ret[uired  by  law  of  sheriffs,  and  then 
and  there  requested  the  said  C.  D.,  as  such  clerk,  to  re- 
ceive the  said  bond,  and  to  administer  to  the  petitioner  the 
said  oath  of  office,  and  to  file  and  record  the  said  oath  and 
bond,  and  to  certify  the  taking  and  subscribing  of  the  said 
oath  on  the  back  of  the  said  commission,  and  to  deliver  the 
said  commission  to  the  petitioner:  Yet  the  said  C.  D.,  so 
being  such  clerk  as  aforesaid,  then  and  there  wholly  re- 
fused, and  still  refuses,  to  receive  the  said  bond,  or  to 
administer  to  the  petitioner  the  said  oath  of  office,  or  to  file 
and  record  the  said  oath  and  bond,  or  to  certify  the  taking 
and  subscribing  of  the  said  oath  on  the  back  of  the  said 
commission,  or  to  deliver  the  said  commission  to  the  peti- 
tioner :     By   means   whereof,  the    petitioner  is    prevented 


6S'o  MANDAMUS. 


Petition. 


from  entering  upon  and  exercising  the  duties  of  the  said 
office  of  sheriff,  and  is  kept  out  of  the  said  office,  to  which 
he  is  justly  and  lawfully  entitled.  Wherefore  the  petitioner 
prays  a  w\-\i  oi  mandamus ,  directed  to  the  said  C.  D.,  com- 
manding him  forthwith  to  receive  the  said  bond,  and  to 
administer  to  the  petitioner  the  said  oath  of  office,  and  to 
tile  and  record  the  said  oath  and  bond,  and  to  certify  the 
taking  and  subscribing  of  the  said  oath  on  the  back  of  the 
said  commission,  and  to  deliver  the  said  commission  to  the 
petitioner ;  and  that  such  further  order  may  be  made  in  the 
premises  as  justice  may  require,  etc.  (^) 

A.  B. 

State  of  Illinois,  > 

County  of ,      5  set.     A.    B.,   the  petitioner  in  the 

foregoing  petition  named,  makes  oath  and  says,  that  the 
several  matters  and  things  in  the  said  petition  contained  are 
true,  to  the  best  of  his  knowledge,  information  and  be- 
lief.(^) 

A.  B. 

Subscribed  and  sworn,  etc. 

See  the  substance  of  a  petition  for  a  mandamus  to  com- 
pel a  municipal  corporation  to  pay  the  amount  of  a  judg- 
ment obtained  against  it,  50  111.  160 ;  the  substance  of  a 
petition  for  a  manda^mis  to  compel  a  county  clerk  to  make 
out  and  deliver  a  certificate  of  election,  29  111.  413  ;  a  pe- 
tition for  a  writ  to  compel  a  municipal  corporation  to  com- 
plete the  collection  of  a  certain  tax  specially  assessed,  for 
the  opening  of  a  street,  and  to  pay  the  damages  awarded 
to  the  petitioner,  18  111.  276 ;  to  compel  a  county  judge 
(under  a  special  statute)  to  ascertain,  with  the  mayor  of  a 
city,  the  proportion  of  taxes  to  be  paid  to  the  city,  25  III. 
187  ;  to  compel  the  auditor  to  allow  damages  on  protested 
bank-bills,  out  of  the  proceeds  of  stocks  sold  on  the  wind- 
ing up  of  a  bank,  29  111.  48 ;  to  compel  the  judges  of  a 
court  to  receive  the  appearance  of  a  defendant  in  an  action, 
with  or  without  the  entering  of  special  bail,  Moses  on  Man- 

(^)  2  Scam.  483. 

(jjr)  Mos.  Mand.  23S,  241 ;  14  How.  U.  S.  3. 


i 


MANDAMUS.  6Si 

Proceedings,  etc. — Defenses. 

damus,  237  ;  to  compel  a  city  council  to  pass  an  order  on 
the  treasurer,  Id.  239. 

Proceedings^  etc. — By  the  tenth  section  (above  quoted) 
of  the  Illinois  practice-act  of  1872,  the  issuing  of  an  alter- 
native writ  of  mandamus,  setting  out  the  cause  of  action,  is 
in  effect  dispensed  with  ;  and  it  is  sufficient  "to  summon 
the  defendant  in  a  summons  in  the  usual  form,  command- 
ing the  defendant  to  appear  and  answer  the  plaintiff  in  an 
action  of  inandainus ;'''  and  the  issues  are  to  be  made  up 
"  by  answering,  pleading  or  demurring  to  the  petition  as  in 
other  cases."  (r) 

Before  this  statute,  the  petitioner  was  required  to  give 
notice  of  the  application ;  and  if  the  petition  presented  a 
proper  case,  -prima  facie ^  an  alternative  writ  of  mandamus 
issued,  commanding  the  defendant  to  do  the  thing  required, 
or  to  show  cause  to  the  court  why  it  should  not  be  done. 
This  writ  then  served  the  same  purpose  as  a  declaration  in 
an  ordinary  cause  ;  and  the  defendant  might  move  to  quash 
it,  or  demur  to  it,  or  make  a  return  denying  the  allegations 
thereof,  or  setting  up  new  matter  constituting  a  defense  to 
the  relator's  claim  ;  (5)  and  if  the  defendant  neglected  to 
make  any  answer  or  return  to  the  alternative  writ,  a  per- 
emptory writ  would  issue,  without  any  rule  against  him  \.o 
return  the  alternative  writ.  (/) 

DEFENSES. 

The  Illinois  practice-act,  as  above  mentioned,  provides 
that  the  issues  in  "an  action  of  mandamus^^  shall  be  made 
up  "by  answering,  pleading  or  demurring  to  the  petition 
as  in  other  cases."  {ti) 

For  demurrers,  see  the  forms  in  Assumpsit,  anic.,  P^^g'- 
268. 

(r)  2  Starr  &  Curtis'  An.  Stat.  17S0;  Rev.  Stnt.  (1877)  735  ;  7  Ciadw.  231. 

(«)  See  12  111.  248;  33  111.  9;   15  111.  492;  93  111.  133. 

[t)  2  Scam.  203  ;  3  Scam.  283. 

(«)  2  Starr  &  Curtis'  An.  Stat.  1780;    Rev.  Stat.  (1S77)  657. 


682  MANDAMUS. 


Answer. 


AnsTvc?'  or  -pleas. — The  answer  or  pleas  to  the  petition, 
under  the  practice  in  Illinois,  take  the  place  of  the  return 
to  the  alternative  writ  of  mandamus  formerly  required  ;  and 
the  same  general  rules  governing  a  return  are  applicable 
to  answers  or  pleas. 

The  answer  or  pleas  must  either  deny  the  facts  alleged 
in  the  petition,  on  which  the  claim  of  the  relator  is  founded, 
or  must  set  up  other  facts  sufficient  in  law  to  defeat  such 
claim  ;  and  these  facts  should  be  alleged  positively  and  dis- 
tinctly ;  and  if  instead  of  stating  facts,  the  pleading  merely 
sets  out  or  refers  to  matters  of  evidence  from  which  these 
facts  are  inferred,  it  is  objectionable,  {y)  And  every  in- 
tendment will  be  made  against  an  answer  or  plea  which  is 
not  responsive  to  the  important  allegations  of  fact  contained 
in  the  petition,  {w)  It  is  not  sufficient  to  aver  conclusions 
of  law.  {x) 

If  an  answer  or  plea  is  insufficient,  the  relator  may  de- 
mur;  (j)  but  a  demurrer  admits  the  truth  of  the  matters 
set  forth  in  the  answer  or  plea,  {z) 

No.  310.     Answer  to  a  petition  for  a  mandamus. 
In  the Circuit  Court 


Term,  18- 


The  answer  of  C.  D.,  defendant,  to  the  petition  of  A.  B., 
petitioner,  for  a  writ  of  mandamus. 

The  defendant,  for  answer  to  the  said  petition,  says,  that 
{here  deny,  or  confess  and  avoid,  or  admit,  some  material 
allegation  of  the  petition'). 

And  the  defendant  further  answering,  says,  that  {here 
deny,  or  confess  and  avoid,  or  admit,  some  other  matertal 
allegation  of  the  petition;  and  proceed  in  this  manner 
until  the  whole  petition  is  answered). 

(v)  Moses  on  Mand.  210;   10  Wend.  20;  35  Barb.  105;  37  Penn.  S.  R 
237;  7  Clarke,  (Iowa,)  390;  i  Serg.  &  Rawle,  254. 
(xy)  15  111.  492;  51  111.  191;  Tap.  Mand.  349,  et  seq. 
{x)  51  111.  191. 

(y)  Moses  on  Mand.  214;  14  Ohio,  252. 
(^r)  47  111.  256. 


MANDAMUS.  68' 


Plea. 


Wherefore  the  defendant  prays  the  judgment  of  the  court 
here,  whether  the  petitioner  ought  to  have  a  writ  of  man- 
damus in  this  behalf;  and  that  he,  the  defendant,  may  be 
hence  dismissed,  with  his  costs,  etc.  m 

C.   D. 

IV 0.  311.     Plea  to  a  petition  for  a  mandamus. 

In  the Circuit  Court. 

Term,  18—. 

C.  D.  I 

ats.  ^Proceeding  for  mandamus. 

The  People,  etc.,  ex  rel.  \ 

A.  B.  j      And  the  defendant,  by  E.  F., 

his  attorney,  comes  and  defends,  etc.,  and  says  that  the 
petitioner  ought  not  to  have  a  writ  of  mandamus  against 
him,  the  defendant,  in  this  behalf,  because  he  says,  that 
[here  set  forth  the  subject-matter  of  the  defense.  If  the 
-plea  merely  denies  an  allegation  of  the  petition,  conclude 
to  the  country.  If  it  sets  tip  nezv  matter,  conclude — "And 
this  the  defendant  is  ready  to  verify  ;  wherefore  he  prays 
judgment  if  the  petitioner  ought  to  have  a  writ  of  manda- 
mus against  him  in  this  behalf,  etc.") 

If  the  defendant  desires  to  deny  more  than  one  material 
averment  of  the  petition,  or  to  set  up  several  defenses,  he 
should  plead  as  many  distinct  pleas  as  there  are  matters  of 
fact  to  be  tiaversed,  or  defenses  to  be  pr'-'iented. 


684  0]JO  WARRANTO. 

Nature  of  the  writ,  etc. 


CHAPTER   XVI. 

QUO   WARRANTO. 

Quo  WARRANTO  is  the  name  of  a  writ  issued  n  the 
name  of  the  people  or  government,  against  any  person  or 
corporation  that  usurps  any  franchise  or  office,  command- 
ing the  sheriff  of  the  county  to  summon  the  defendant  to 
be  and  appear  before  the  court  from  whence  the  writ  issued, 
at  a  time  and  place  therein  named,  to  show  "  by  what  war- 
rant" he  claims  the  franchise  or  office  mentioned  in  the 
writ,  (a) 

By  the  fiction  of  the  feudal  law,  the  king,  as  the  head 
and  visible  representative  of  the  community,  was  consid- 
ered not  only  as  the  ultimate  proprietor  of  all  the  land  in 
the  kingdom,  but  the 'fountain  from  whence  all  public  fran- 
chises were  derived  ;  and  if  any  individual  or  collective 
body  of  men,  whether  corporate  or  not,  without  legal 
authority,  exercised  any  such  franchise,  it  was  considered 
as  an  usurpation  of  the  king's  prerogative ;  and  if  a  fran- 
chise had  been  legally  granted,  but  was  exercised  in  a 
manner  inconsistent  with  the  express  or  implied  condition 
of  the  grant,  the  franchise  was  considered  forfeited,  and 
the  sovereign  might  resume  it. 

This  writ  has  become  obsolete,  having  given  way  to  in- 
formations in  the  nature  of  a  (/no  zvarranto  at  the  common 
law.  ib) 

{a)  3  Bla.  Com.  262,  263 ;  4  Term  R.  381 ;  2  Bouv.  L.  D.  417 ;  5  Wheat 
291;  15  Mass.  125;  5  Ham.  35S;  i  Miss.  115;  Ang.  &  Ames  on  Corp., 
sec.  731. 

(3)  Ang.  &  Ames  on  Corp.  sec.  731;  2  Bouv.  L.  D.  417.  Sec  3  Bla, 
Com.  262,  263 


QUO  WARRANTO.  685 

Proceeding  by  information — In  what  cases  it  lies,  etc 


THE  PROCEEDING  BY  INFORMATION. 

An  information  in  the  nature  of  a  quo  ivarranto  is  under- 
stood to  be  in  form  a  criminal  proceeding,  {c)  and  can  be 
resorted  to  only  in  cases  where  the  public,  in  theory  at  least, 
has  some  interest,  {d)  Though  a  criminal  proceeding  in 
form,  yet  in  substance  it  is  but  a  civil  one.  (^) 

In  -what  cases  this  information  lies,  etc. — The  usual 
object  of  an  information  of  this  nature  is  to  call  in  question 
the  title  to  an  office  or  franchise  claimed  and  exercised  by 
the  defendant,  because  of  some  alleged  defect  in  such  title  ; 
as  for  instance,  that  at  the  time  of  the  election  of  the  de- 
fendant to  an  office,  he  was  disqualified  to  be  elected  ;  or 
that  the  election  itself  was  void  or  irregular ;  or  that  the 
defendant  was  not  duly  elected,  or  not  duly  appointed ;  or 
that  he  has  not  been  duly  sworn  in,  or  has  been  otherwise 
unlawfully  admitted ;  or  that  he  has  since  become  disqual- 
ified, and  yet  presumes  to  act.  (_/*)  A  defective  title  is 
understood  to  be,  and  is  in  contemplation  of  law,  the  same 
as  no  title  whatever ;  and  a  person  exercising  an  office  or 
franchise,  of  a  public  nature,  is  considered  as  a  mere 
usurper,  unless  he  has  a  good  and  complete  title  in  every 
respect,  {g) 

Where  a  person  is  in  office  by  color  of  right,  the  remedy 
is  not  b}'  mandamus  to  admit  another  having  lawful  claim, 
but  by  information  in  the  nature  of  a  qtco  warranto.  (Ji) 

This  information  will  lie  against  a  corporation  or  an  indi- 

[c)   II  III.  552;  13  111.  66;  15  111.  417;  21  111,  65;  116  111.  493. 

((/)  21  111.  65;  17  111.  191  ;  114  III.  34 ;  100  Hi.  464, 

{e)  2  Term  R.  484;  2  Kyd  on  Corp.  439 ;  I  Serg.  &  Rawle,  385  ;  13  111.  66. 

(/)  21  111.  65;  55  III.  33;  70  111.  25;  47  III-  3S4;  4  Seld.  (N.  Y.)  671 ;  77 
111.  52 ;  92  111,  406, 

{g)  21  111.  65.  See  15  111,  217;  20  La,  An.  114;  i  Aik.  513,  552;  15 
Johns.  358;  18  Bradw.  588. 

{h)  Breese,  104;  2  Scam.  487  ;  I  Gilm.  671 ;  17  111.  167;  3  Johns.  Cas.  79; 
2  johns.  190;  4  Cow,  loi,  n.  See  I  team.  215;  55  111.  172;  2  Ilalst.  101. 


636  QUO  WARRANTO. 

When  the  information  will  be  granted. 

vidual  ;  (/)  and  against  officers  appouited  by  the  executive, 
as  well  as  those  holding  corporate  offices  or  franchises.  {J) 
Where  an  incorporated  company  carries  on  banking  opera- 
lions,  without  authority  from  the  legislature,  this  informa- 
tion lies  ;  {k)  and  it  is  a  proper  mode  of  testing  the  question 
of  the  forfeiture  of  a  charter.  (/) 

The  right  to  preside  over  the  meetings  of  a  city  council 
is  a  franchise  given  by  law  ;  and  if  invaded,  the  remedy  is 
bv  information  in  the  nature  of  a  quo  warranto,  {in) 

Where  a  part  is  attempted  to  be  taken  from  a  school  dis- 
trict and  added  to  another,  the  legality  of  the  change  can  be 
tested  by  quo  zvarranto.  (a) 

When  leave  to  file  this  information  will  he  granted. — 
It  is  not  granted  of  course,  but  depends  on  the  sound  dis- 
cretion of  the  court  upon  the  circumstances  of  the  case.  (;/) 
It  will  usually  be  granted,  where  the  right,  or  the  fact  on 
which  the  right  depends,  is  disputed  and  doubtful ;  [p]  or 
where  the  right  turns  upon  a  point  of  new  or  doubtful 
law ;  {f)  or  where  there  is  no  o:her  remedy,  {q) 

It  does  not  seem  to  be  a  reason  for  refusing  an  informa- 
tion, that  the  objection  to  the  defendant's  title  arises  from  a 
defect  in  the  title  of  some  other  person,  through  whom  he 
claims,  provided  the  application  is  made  within  proper 
time  ;  (r)  for  it  is  admitted  that  where  judgment  of  ouster 
has  been  given  against  a  person  through  whom  a  title  i'-. 
claimed,  that  may  be  a  reason  for  granting  an  information 
to  impeach  the  derivative  title  ;  and  that  the  title  of  the  de- 
fendant may  be  impeached  by  an  issue  introduced  on  th<3 

(/ )  Cas.  K.  B.  225 ;  Bull.  N.  P.  212.     See  5  Mass.  230. 

(/)   10  Mxss.  290;  21  Mass.  339;  84  111.  162;  61  111.  405;   18  Bradvv.  627. 
{k)   15  Johns.  358;   lOI  111.  308. 

(/)  32  111.  82;  15  Wend.  113;  23  Wend.  222;  3  Term  R.  132.  See  6  B. 
Mon.  397  ;  I  Zahr.  9  ;  6  Cow.  217. 

{ni)  22  Iowa,  75.     See  20  Bradw.  56S. 

[a)  87  111.  41  ;  75  111.  561 ;  84  111.  162  ;  loi  111.  30S. 

(«)  70  111,  25;  83  111.  128;  88  111.  537;  114  111.  34. 

{o)  3  Burr.  1485 ;   I  Bl.  Rep.  46S. 

(/)  Cowp.  58  ;  Doug.  397  ;  4  Cow.  102. 

\q)  Cas.  K,  B.  225  ;  Bull.  N.  P.  212. 

{r)  8  Mod.  216. 


QUO  WARRANTO.  6S7 

When  the  information  will  be  granted. 


record,  respecting  the  title  of  the  person  under  whom  he 
claims,  though  the  latter  has  not  been  ousted  on  an  infor- 
mation filed  against  him.  (5)  It  may,  or  may  not,  be  pos- 
sible to  impeach  the  original  right  on  which  the  derivative 
title  depends,  by  an  information  filed  against  the  person 
who  claimed  to  exercise  that  right.  Whatever  may  be  the 
case,  where  that  may  be  done,  but  in  fact  has  not  been 
done,  it  has  been  decided  that  where  it  can  not  be  done, 
the  original  right  may  be  impeached  in  an  information 
against  the  person  whose  derivative  title  depends  upon 
it.  (i)  It  is  no  objection  to  an  information  against  an  alder- 
man, that  the  relators  who  opposed  the  election  afterwards 
made  no  opposition  to  his  election  to  the  principal  office  of 
magistracy,  which  required  that  the  defendant  should  be 
an  alderman,  as  a  qualification  for  the  higher  office ;  or 
that  they  attended  at,  and  concurred  in,  corporate  meetings, 
whereat  he  presided  or  attended  in  his  official  capacity,  (zt) 
Nor  is  it  an  objection,  that  the  relators  in  an  information 
which  would  operate,  in  its  effect,  to  dissolve  the  corpora- 
tion, attended  corporate  meetings  at  which  the  mayor  was 
elected,  whose  election  they  impeach  on  the  ground  that 
the  corporation  was  dissolved  by  the  loss  of  an  integral 
part ;  and  that  they  voted  for  another  candidate,  and  after- 
wards attended  other  corporate  meetings  at  which  such 
mayor  presided,  (v)  So  a  previous  knowledge  of  the  fact, 
in  the  person  on  whose  affidavit  the  motion  is  made,  will 
not  be  a  ground  for  refusing  the  information,  if  he  was 
under  no  obligation  of  remonstrating  against  the  proceed- 
ings— if  he  is  in  fact  merely  a  witness,  not  relator  ;  as  in  the 
case  of  an  application  on  the  affidavit  of  the  town  clerk,  (w) 
Nor  will  the  relator's  concurrence  in  the  elei:tion  of  the  de- 
fendant be   any  ground  for  refusal,  if  the   objection  was 

(s)  2  Str.  1 109;  Andr.  3S9;  5  Burr.  2601 ;  Cowp.  500. 
(n  3  T.  R.  596 ;  2  Kyd  on  Corp.  435,  436. 
(k)  I  East,  3S. 
•  r)  3  East,  213. 
(w)  Cowp.  75. 

44 


QIJO  WARRANTO. 


When  the  information  will  not  be  scranted. 


matter  of  substance,  not  of  form  in  the  election,  (.v)  And 
where  the  application  is  made  on  the  affidavit  of  several 
persons,  all  of  whom,  but  one,  concurred  in  the  election 
of  the  defendant,  if  that  one  will  avow  himself  the  relator, 
and  render  himself  responsible  for  the  costs,  his  being 
joined  with  others  who  concurred  in  the  election  will  be  no 
reason  for  refusing  the  information,  (y)  Where  the  appli- 
cation is  made  for  the  purpose  of  enforcing  a  general  act 
of  parliament,  which  interests  all  the  corporations  in  the 
kingdom,  it  is  no  objection  that  the  person  applying  is  not 
a  member  of  the  corporation,  (z)  The  abandonment  of  a 
former  information,  for  the  same  cause,  is  of  itself  no  reason 
for  refusing  an  information,  as  that  may  have  been  by  col- 
lusion, {a)  The  court  will  make  the  rule  absolute  for  an 
information  in  the  nature  of  a  g?to  warranto^  though  the 
party  has,  since  the  rule  obtained,  resigned  his  office,  and 
his  resignation  has  been  accepted.  {l>)  See  various  cases, 
in  8  Mod.  Rep.,  at  pages  132,  135,  165,  166,  35,  36,  215, 
216,  234,  in  which  rules  or  informations  were  granted. 

When  leave  will  not  he  granted. — If  the  defendant  can 
show  that  his  right  has  already  been  determined  by  man- 
damus; or  that  it  depends  on  the  right  of  those  who  voted 
for  him,  which  has  not  been  tried ;  {c)  or  that  the  person 
upon  whose  right  the  defendant's  title  depends  has  enjoyed 
his  franchise  so  long,  that  the  court  would  not  permit  it  to 
be  impeached  in  this  mode  of  proceeding;  the  information 
will  be  denied.  (J)  So  if  the  defendant's  right  has  been 
acquiesced  in  for  a  length  of  time,  {e) 

(*)  3  T.  R.  573. 
{y)  4  T.  R.  223. 

(^)3T.  R.  574,  n- 

(«)  2  T.  R.  771. 

(A)  2  M.  &  S.  75.     See  15  III.  223. 

(c)  2  Hawk., P.  C,  ch.  26,  sec.  9. 

(<f )  I  Burr.  433;  4  Term  R.  6S4. 

{e)  Bac.  Abr.  Informations,  (D). 


QUO  WARRANTO.  689 

When  the  information  -will  not  be  granted. 

The  time  within  which  a  corporate  office  might  be  im- 
peached by  a  quo  warranto,  was,  by  the  common  law,  in- 
definite ;  it  varied  with  the  circumstances  of  each  particular 
case ;  {f^  and  it  was  for  some  time  thought  better  that  it 
should  be  unsettled,  {g)  At  length,  however,  the  court 
(the  king's  bench)  set  a  limit  to  its  discretionary  power, 
and  confined  the  time,  in  analogy  to  other  cases  of  limita- 
tions, within  twenty  years,  {Ji)  and  at  length  to  six  years  ;  (/) 
and  the  last  period  was  confirmed  by  Parliament,  by  stat. 
32  Geo.  3,  58.  If  this  is  a  civil  action,  the  limitation  in 
Illinois  would  seem  to  be  five  years.  (/) 

If  the  person  from  whom  the  title  was  derived  is  dead, 
it  seems  the  information  will  not  be  granted ;  [k)  so  where 
the  parties  have  acquiesced  ;  (/)  or  where  so  great  a  num- 
ber of  derivative  titles  would  be  affected  by  a  judgment 
against  the  defendant,  that  it  would  tend  to  dissolve  the 
corporation,  {iri) 

The  information  will  be  denied,  if  the  election  by  which 
the  defendant  claims  is  agreeable  to  the  charter,  or  he  has- 
never  acted  under  the  election,  or  there  has  been  but  a 
mere  claim,  and  no  user  of  the  franchise.  {11)  But  a  swear- 
ing in,  though  defective,  is  a  user,  {o)  So  the  information 
will  not  be  granted,  if  it  appears  that  the  time  for  which  the 
officer  was  elected  will  expire  before  the  inquiry  can  have 
any  effect ;  ( ^)  or  where  the  persons  on  whose  affidavits 


(/)  8  Mod.  155;  Id.  286,  cited  i  T.  R.  4,  n.,  and  3  T.  R   311 ;   i  Str.  677; 
and  see  i  T.  R.  i ;  Id.  3,  and  note;  3  T.  R.  310,  311;  2  T.  R.  767. 

{g)  3  Burr.  1485,  14S6. 

{h)  4  Burr.  1962,  2022,  2121,  2523;  4  Co^v.  15)3.     See  11  Ohio,  126. 

(/)  4  T.  R.  282,  684;  R.  G.  Hil.  T.  1791 ;  4  T.  R.  284. 

(/)  2  Gross'  Stat.  258. 

(^k\  1  Term  R.  4,  n. 
'  (/)  I  Term  R.  4. 

(»»)  Cowp.  59. 

(«)  Say.  R.  24s;  sT.  R.  85. 

(o)  4  East,  337. 

(/;  2  Johns.  184;  3  Mass.  285.     See  15  111.  213. 


690  QXJO  WARRANTO. 

When  the  information  will  not  be  granted. 

the  motion  is  granted,  have  lain  by  without  recently  prose- 
cuting, though  with  full  knowledge  of  the  fact,  {q)  or  have 
concurred  with  the  rest  of  the  corporation  in  a  resolution 
not  to  tkke  advantage  of  a  flaw  in  the  defendant's  title  ;  (r) 
or  where  the  prosecutor  stands  in  the  same  circumstances 
with  the  defendant ;  (5)  or  where  the  persons  in  whose 
name  the  application  is  made,  are  wholly  connected  with 
the  corporation  ;  {I)  or  where  the  application  is  manifestly 
frivolous  and  vexatious,  {tt) 

In  England,  it  seems,  the  court  will  not  grant  an  infor- 
mation to  try  the  validity  of  an  election  to  the  office  of 
churchwarden,  because  it  is  no  usurpation  on  the  crown,  {v) 
But  in  Pennsylvania  an  information  has  been  granted 
against  persons  exercising  the  office  of  trustees  of  a  church 
corporation  ;  [w)  and  it  is  said  to  be  settled,  in  this  country, 
that  an  information  will  lie  against  any  one  who  intrudes 
himself  into  an  office  of  a  private  corporation,  {x) 

If  the  relator  has  agreed  not  to  enforce  a  by-law  upon 
which  he  now  grounds  his  attempt  to  impeach  the  defend- 
ant's title  ;  {jr)  or  was  present  and  concurred,  at  the  tunc  of 
the  objectionable. election,  though  then  ignorant  of  the  ob- 
jection ;  or  is  indigent,  and  there  are  strong  reasons  to  sus- 
pect that  he  is  applying  not  on  his  own  account,  or  at  his 
own  expense,  but  in  collusion  with  a  stranger ;  or  if  the 
circumstances  throw  suspicion  on  the  motives  of  the  relator, 
and  the  consequence  will  be  to  dissolve  a  corporation ;  the 
information  will  be  denied,  (z) 

The  count  will  not  grant  this  information  to  enforce  a 

{q)  4  Burr.  2024.  •  ■• 

(r)  3  T.  R.  300 

(5)  2  T.  R.  771 ;  6  T.  R.  503. 

(0  I  T.  R.  3. 

(«)  2  Str.  1039;  2  Burr.  780;  3  T.  R.  301. 

iv)  4  Term  R.  381.     See  15  Mich.  164. 

(w)  15  S.  &  R.  127. 

(«)    Ang.  &  Ames  on  Corp.,  sec.  736. 

iy)  3  T.  R.  300. 

{z)  2  B.  &  A.  339. 


QUO  WARRANT  U.  691 

Illinois  statutes. 

claim  against  a  turnpike  company,  for  damage  done  to  the 
relator's  property  in  laying  out  a  road,  though  the  charter, 
requires  the  company  to  pay  the  damages,  {a) 

A  secondary  and  incidental  ground  for  the  information, 
resorted  to  by  way  of  forlorn  hope,  after  the  original  and 
main  ground  has  failed,  will  be  listened  to  with  distrust ; 
and  the  court,  in  its  discretion,  may  disregard  it,  though 
it  might  be  a  good  ground  if  brought  before  the  court  in 
the  first  instance,  {b) 

VVken  it  lies — Parties — Petition — Information. — By  section  i 
of  the  "  Quo  Warranto  "  Act,  it  is  provided 

"  That  in  case  any  person  shall  usurp,  intrude  into,  or  un- 
lawfully hold  or  execute  any  office  or  franchise,  or  any  office 
in  any  corporation  created  by  authority  of  this  state  (or  any 
person  shall  hold  or  claim  to  hold  or  exercise  any  privilege, 
exemption  or  license,  which  has  been  improperly  or  without 
warrant  of  law  issued  or  granted  by  any  officer,  board,  com- 
missioner, court,  or  other  person  or  persons  authorized  or 
empowered  by  law  to  grant  or  issue  such  privilege,  exemp- 
tion or  license),  or  any  public  officer  shall  have  done  or  suf- 
fered any  act  which,  by  the  provisions  of  law,  works  a  for- 
feiture of  his  office,  or  anv  association  or  number  of  persons 
shall  act  within  this  state  as  a  corporation  without  being 
legally  incorporated,  or  any  corporation  does  or  omits  any 
act  which  amounts  to  a  surrender  or  forfeiture  of  its  rights 
and  privileges  as  a  corporation,  or  exercises  powers  not  con- 
f  rred  by  law,  or  if  any  railroad  company  doing  business  in 
this  state  shall  charge  an  extortionate  rate  for  the  transporta- 
tion of  any  freight  or  passenger,  or  shall  make  any  unjust  dis- 
crimination in  the  rate  of  freight  or  passenger  tariff  over  or 
upon  its  railroad,  the  attorney  general  or  state's  attorney  of 
the  proper  county,  either  of  his  own  accord  or  at  the  instance 
of  any  individual  relator,  may  present  a  petition  to  any  court 
of  record  of  competent  jurisdiction,  or  any  judge  thereof  in 
vacation,   for   leave  to  file  an  information  in  the   nature  of  a 

(rt)  2  Johns.   190. 

(b)  4  East,  327,  336;  70  111.  25 ;  73  111.   132  ;  83  III.  128. 


692  QUO  WARRANTO. 

Illinois    statutes. 

qjio  zvarranto  in  the  name  of  the  people  of  the  state  of  IIH- 
nois ;  and  if  such  court  or  judge  shall  be  satisfied  that  there 
is  probable  ground  for  the  proceeding,  the  court  or  judge 
may  grant  the  petition  and  order  the  information  to  be  filed 
and  process  to  issue.  When  it  appears  to  the  court  or  judge 
that  the  several  rights  of  divers  parties  to  the  same  office  or 
franchise,  privilege,  exemption  or  license,  may  properly  be 
determined  on  one  (i)  information,  the  court  or  judge  may 
give  leave  to  join  all  of  such  persons  in  the  same  information 
in  order  to  try  their  respective  rights  to  such  office,  franchise, 
privilege,  exemption  or  license."  [<£) 

Under  this  section,  as  amended  in  1881,  the  suit  lies  by 
the  attorney  general  against  licensee  to  test  the  validity  of  a 
license  to  keep  a  dram-shop,  {e) 

Siumnons. — "  Sec.  2.  On  the  filing  of  such  information 
the  clerk  of  the  court  shall  issue  a  summons  in  like  form 
as  any  other  summons,  commanding  the  defendant  to  ap- 
pear at  the  return  term  thereof  to  answer  the  relator  in 
an  information  in  the  nature  of  a  qiio  warranto.  If  the  in- 
formation is  filed  in  vacation,  the  summons  shall  be  made 
returnable  on  the  first  day  of  the  next  succeeding  term  ;  if 
in  term  time,  it  may  be  made  returnable  on  any  day  of  the 
same  term,  not  less  than  five  days  after  the  date  of  the 
writ,  as  shall  be  directed  by  the  court." 

Service  of  Swnvions. — "  Sec.  3.  The  summons  may  be 
served  in  the  same  manner  as  other  summons  in  suits  at  law ; 
but  if  any  defendant  resides  or  is  out  of  the  state,  he  may 
be  served  with  a  copy  of  the  information,  in  the  same  man- 
ner, and  with  like  effect,  and  the  service  may  be  proved  in 
the  same  way  as  provided  in  cases  of  bills  in  chancery.'"  (/) 

{(i)  2  Starr  &  Curtis'  An.  Stat.  p.  1871.   Laws  of  1881,  p.  125.  bee  21  111.  02; 
80  111.  496;  70  111.  25  ;  68  111.  252;  %Z  111.  538. 
{e)    109  111.  6a I. 
(/)  68  111.  252.    See  114  111.  34. 


A 


QUO  WARRANTO.  693 

Illinois  statutes. 

Defendant  requiycd  to  plead. — "Sec.  4.  Every  defendant 
who  shall  be  summoned,  or  served  with  a  copy  of  the  infor- 
mation, as  required  in  this  act,  shall  be  held  to  demur  or 
plead  to  the  information  on  the  return  day  of  the  summons, 
or  when  served  with  a  copy  of  the  information  at  the  expira- 
tion of  the  time  required  to  be  given,  or  within  such  further 
time  as  may  be  granted  by  the  court,  or  in  default  thereof, 
judgment  may  be  taken,  nil  dicit.^' 

Time  to  Plead,  etc. — "  Sec.  5.  The  court  in  which  any 
information,  as  aforesaid,  is  filed  may  allow  the  relator  or 
defendant  such  convenient  time  to  plead,  replyor  demur  as 
it  shall  deem  just  and  reasonable." 

Judgment. — "  Sec.  6.  In  case  any  person  or  corporation, 
against  whom  any  such  information  is  filed,  is  adjudged 
guilty,  as  charged  in  the  information,  the  court  may  give 
judgment  of  ouster  against  such  person  or  corporation  from 
the  office  or  franchise,  and  fine  such  person  or  corporation 
for  usurping,  intruding  into,  or  unlawfully  holding  and 
executing  such  office  or  franchise,  and  also  give  judgment  in 
favor  of  relator  for  the  costs  of  the  prosecution  :  Provided, 
that  instead  of  judgment  of  ouster  from  a  franchise  for  an 
abuse  thereof,  unless  the  court  is  of  the  opinion  that  the 
public  good  demands  such  judgment,  the  court  may  fine  the 
person  or  corporation  found  guilty  in  any  sum  not  exceeding 
twenty-five  thousand  dollars  ($25,000)  for  each  offense. 
Whenever  judgment  is  given  for  any  defendant,  in  such 
information,  the  person  or  corporation  to  whom  judgment 
is  given  shall  recover  costs  against  the  relator."  (*) 

Appeal  and  ivrit  of  error. — "  Sec.  7.  Appeals  and  writs  of 
error  may  be  taken  and  prosecuted  in  the  same  manner,  and 
upon  the  same  terms,  and  with  like  effect  as  in  other  civil 
cases." 

Section  10  of  the  practice-act  of  1872,  is  as  follows : 
"  It   shall  not  'be  necessary  hereafter,  in  any  action   of 
7na7idamiis  or  quo  warranto,  to  set  out  the  cause  of  actior 

(*)  20  Bradw.  605  ;  18  Braclw.  5SS ;  113  III.  dol      See  3  Giim.  59,  64. 


694  Q3-0  WARRANTO. 

Parties,  etc. 

in  the  \ynt,  but  it  shall  be  sufficient  to  summon  the  defend- 
ant in  a  summons  in.  the  usual  form,  commanding  the  de- 
fendant to  appear  and  answer  the  plaintiff  in  an  action  of 
mandamus  or  qtio  zvarranto,  as  the  case  may  be,  and  the 
issues  shall  be  made  up  by  answering,  pleading  or  demur- 
ring to  the  petition  as  in  other  cases."  (g) 

The  statute  of  amendments  and  jeofails  extends  to  infor- 
mations in  the  nature  of  a  qtto  ivarranto,  and  proceedings 
thereon.  iJi) 

Sections  i  and  2  of  chapter  1 12,  R.  S.,  above  quoted,  are 
substantially  the  same  as  sections  4  and  5  of  the  statute  of 
9  Anne,  ch.  20.  (/)  Both  are  pointed  at  the  usurpation  of, 
intrusion  into,  or  unlawfully  holding  and  executing  certain 
offices.  Tlie  offices  are  specified  in  the  latter  statute,  as 
offices  and  franchises  in  corporations  and  boroughs ;  in  the 
Illinois  statute  they  are  not  specified  ;  and  that  seems  to  be 
the  only  real  difference  between  them.  The  statute  of 
9  Anne  applies  only  to  corporate  offices,  and  franchises  of 
a  corporate  nature,  in  corporate  places.  But  at  common 
law,  before  this  statute,  informations  were  filed  and  sus- 
tained, in  the  nature  of  quo  warranto,  in  cases  not  relating 
to  any  corporate  office,  or  franchise  of  a  corporate  nature, 
in  a  corporate  place ;  as  in  cases  where  a  person  unlaw- 
lully  took  upon  himself  to  act  in  any  public  capacity,  touch- 
ing the  rule  and  government  of  any  place  in  England  or 
Wales,  or  the  administration  of  justice,  or  the  political 
rights  of  third  persons.  (/') 

Bx  and  against  zvhat  parties  this  information  should  be 
fled,  etc. — {k)  If  the  information  is  for  the  using  of  a 
franchise  by  a  corporation,  it  should  be  against  the  corpo- 
ration ;  if  for  usurping  to  be  a  corporation,  it  should  be 

(o-)  Rev.  Stat.  (1874)  776;  Rev.  Stat.  (1^77)  735- 

{k)  Ibid,  131. 

(t  )  See  Bac.  Abr.  Informations,  D. 

(/)  21  111.  65.     See  Com.  Dig.  ^no  War.  A,  B;  Bull  N.  P.  210-212. 

{k)  See  4  Cow.  loi  et  seij.;  Ang.  &  Ames  on  Corp.,  sec.  731  et  seq. 


QUO  WARRANTO.  695 

Preliminarj-  matters— Practice — The  information. 

against  the  particular  persons.  (/)  It  will  not  lie  on  the 
relation  of  an  individual,  against  a  corporation  as  a  body. 
This  should  alwa3S  be  by  the  attorney-general,  {m)  If  on 
the  relation  of  a  private  person,  it  should  be  against  the 
several  individuals,  to  show  by  what  authority  they  claim 
their  respective  franchises,  {n)  If  the  information  is  at 
common  law,  there  is  no  relator,  {d^ 

ATatters  prcli'mmary  to  the  information ;  -practice. — 
The  first  step  towards  the  filing  of  an  information,  at  the 
relation  of  any  person,  is  a  motion  by  the  attorney-general, 
or  state's  attorne}-,  based  on  an  affidavit  or  affidavits,  for 
leav^e  to  file  such  information.  (_^)  If  the  applicant  makc.3 
out  a  case  prin:a  facie,  the  usual  course  is  for  the  court  to 
grant  a  rule  nisi  on  the  defendant,  to  show  cause  why  the 
information  should  not  be  filed  ;  and  on  the  day  appointed, 
or  at  such  time  thereafter  as  the  court  may  fix,  he  may 
show  cause  against  the  rule,  and  exhibit  counter  affida- 
vits, {q)  For  the  requisites  of  the  affidavits  on  both  sidea, 
and  observations  thereon,  see  4  Cow.  R.  105,  106,  and  Ang. 
&  Ames  on  Corp.,  sees.  748,  749.  Unless  the  cause  shown 
is  such  as  to  put  the  matter  beyond  dispute,  the  court  will 
make  the  rule  absolute  for  the  information,  in  order  that  the 
question  of  the  right  may  be  properly  determined,  (r) 


THE    INFORMATIO^ 

The  outline  of  the  English  form  is  given  in  4  Cow.  R. 
106,  from  2  Kyd  on  Corp.  403  ;  and  a  variety  of  English 
precedents  will  be  found  in  6  Wentworth's  Pleadings,  28 
to  234. 

(/)  2  Roll.  Rep.  113.  115.     See  88  111.  537. 

(/«)  80  111.  493;  loi  111.   308;  109  111.  621  ;  114   111.  34;    116  111.  493. 

(«)  2  Burr.  869.      See  I  U.  S.  Lnw  Jour.  288-290. 

(0)  Bull.  N.  P.  211.    See  116  111.  493. 

(/)  See  I  Scam.  215;   114  111.  34. 

{q)  See  14  111.  476;  88  111.  537. 

(r)  Bull.  N.  P.  210;  4  Cow.  106;  112  111.  520. 


696  QUO  WARRANTO. 

Information  by 'attorney-general,  against  corporation. 

In  Illinois,  an  information  must  be  "in  the  name  and  by 
the  authority  of  the  People  of  the  state  of  Illinois,"  anj 
conclude  "against  the  peace  and  dignity  of  the  same."  (5) 
And  it  is  as  essential  to  an  information  that  a  proper  venue 
be  laid,  as  to  an  indictmen't  or  declaration.  (/) 

No.  312.  Information  by  the  attorney-general.,  ex  of- 
ficio, against  a  cor^ordtioh^''forf ^ocer£isi(iig  franchises 
without  authority,  {u) 

In  the Circuit  Court 


Term,  18 — . 

State  of  Illinois,  > 

County  of ,      3  set.      A.   B.,   Attorney-General   of 

the  said  state  of  Illinois,  who  sues  for  the  People  of  the 
said  state  in  this  behalf,  comes  into  the  court  here,  on  this 
day,  and  for  the  said  People,  and  in  the  name  and  by  the 
authority  thereof,  gives  the  court  here  to  understand  and 

be  informed,  that  the Company,  for  the  space 

of months  last  past,  and  more,  in  the  county  of 

aforesaid,  has  used,  and  still  does  use,  without  any  war- 
rant, charter  or  grant,  the  following  liberties,  privileges 
and  franchises,  to  wit,  '[that  of  becoming  proprietors  of  a 
bank  or  fund  for  the  purpose -of  issuing  notes,  receiving 
deposits,  making  discounts,  and  transacting  other  business 
which  incorporated  banks  ma}'"  and  do  transact  by  virtue 
of  their  respective  acts  of  incorporation,  and  also  that  of 
actually  issuing  notes,  receiving  deposits,  making  dis- 
counts, and  carrying  on  bamking  operations  and  other 
moneyed  transactions  which  are  usually  performed  by  in- 
corporated banks,  and  which  they  alone  have  a  right  to 
do  ;]I  all  which  said  liberties,  privileges  and  franchises  the 

said" Company,  during  all  the  time  aforesaid,  in 

the  county  aforesaid,  upon  the  said  People  has  usurped, 
and  still  does  usurp ;  to  the  damage  and  prejudice  of  the 
said  People,  and  against  the  peace  and  dignity  of  the  same. 
Whereupon  the  said  Attorney-General,  for  the  said  People, 
and  in  the  name  and  by  the  authority  thereof,  prays  the 
consideration  of  the  court  here  in  tlie  premises,  and  due 


{s)   II  111.  552;  13  111.  67;  15  111.  417.  59  "'•  94,  "6  111.  493. 
(/)  15  111.  no;  68  111.  252;  6  Bradvv.  127,  129. 
(m)  15  Johns.  362. 


d 


QUO  WARRANTO.  697 

Information  at  instance  of  relator, 
process  of  law  in  this  behalf,  to  make  the  said 


Company  answer  to  the  said  People  by  what  warrant  it 
claims  to  have,  use  and  enjoy  the  liberties,  privileges  and 
franchises  aforesaid. 

A.   B.,  Attorney-General. 

The  information  need  not  show  any  title  in  the  People  to 
the  franchise,  but  it  lies  with  the  defendant  to  show  a  war- 
rant for  exercising  such  franchise  ;  and  if  the  title  set  up  is 
mcomplete,  the  People  is  entitled  to  judgment,  (v) 

See  the  cases  reported  in  6  Cow.  R.  196,  211,  217.  In 
these  cases,  the  informations  charged  the  corporations  gen- 
erally with  usurpations  ;  and  on  the  defendants'  setting  out 
their  charters,  and  justifying  under  them,  the  attorney-gen- 
eral replied  the  causes  of  forfeiture. specially ;  and  this  was 
held  to  be  no  departure. 

In  Illinois,  by  the  statute  of  1S45,  concerning  academies, 
(Gross'  Stat.  107,)  the  attorney-general  is  required,  when 
he  shall  have  knowledsfe  of  a  violation  of  the  statute  bv 
any  corporation  created  thereunder,  to  file  an  information 
for  the  purpose  of  dissolving  such  corporation.  And  by 
statutes  in  force  July  i,  iS^i,  (2  Gross'  Stat.  304,  305,)  the 
state's  attorneys  may  proceed  by  information  against  rail- 
road companies,  for  forfeitures  of  their  charters  by  reason 
of  violations  of  those  statutes. 

JVo.  313.     Information  at  the  instance  of  a  relator.,  under 

the  statute,  {zv) 

{Title  of  court,   etc.,   as    in   last  ^precedent.)     A.   B., 

State's  Attorney  for  the  said  county  of ,  who  sues  for 

the  People  of  the  said  state  of  Illinois  in  this  behalf,  comes 
into  the  court  here,  on  this  day,  and  for  the  said  People, 
and  in  the  name  and  by  the  authority  thereof,  at  the  rela- 
tion of  E.  F.,  (according  to  the  form  of  the  statute  in  such 
case  inade  and  provided,)  gives  the  court  here  to  under- 
stand and  be  informed,  that  C.  D.,  for  the  space  of  

{v)  15  Johns,  358 ;  2  Kyd  on  Corp.  399;  21  111.  65  ;  18  Bradw.  588. 
{w)  2  Slarr  ft  Curtis'  An.  Stat.  p.  1871  j  Rev.  Stat.  (1877)  747. 


69S  QUO  WARRANTO. 

Information  at  instance  of  relator — Observations, 

now  last  past,  and  more,  in  the  county  aforesaid,  un- 


lawfully has  held  and  executed,  and  still  does  hold  and 
execute,  without  any  warrant  or  right  whatsoever,  the  office 

{or  "franchise,"  or  "office  and  franchise")  of ; 

which  said  office  {or  "franchise,"  c/c.,)  the  said  C.  D., 
durin^y  all  the  time  aforesaid,  in  the  county  aforesaid,  upon 
the  said  People  has  usurped,  and  still  does  usurp  ;  to  the 
damage  and  prejudice  of  the  said  People,  and  against  the 
peace  and  dignity  of  the  same.  (*)  Whereupon  the  said 
State's  Attorney,  for  the  said  People,  and  in  the  name  and 
by  the  authority  thereof,  at  the  relation  of  the  said  E.  F., 
prays  the  consideration  of  the  court  here  in  the  premises, 
and  due  process  of  law  against  the  said  C.  D.,  to  make  him 
answer  to  the  said  People  by  what  warrant  he  claims  to 
hold  and  execute  the  office  {or  "franchise,"  ctc.^  aforesaid. 

A.   B.,  State's  Attorney. 


If  deemed  expedient,  another  count,  or  counts,  may  be 
inserted,  at  the  asterisk  in  the  above  form. 

The  information  should  describe  the  office  or  franchise 
which  the  defendant  is  alleged  to  hold  and  execute,  so  that 
it  may  be  seen  whether  the  case  is  within  the  statute  or 
not.  {x) 

The  appearance  of  the  defendant  to  a  rule  to  show  cause, 
etc.,  is  not  an  appearance  to  the  information;  and  there- 
fore, on  filing  the  information,  the  prosecutor  is  not  entitled 
to  a  rule  to  plead,  but  there  must  be  a  service  of  process,  or 
an  appearance.  The  rule  to  show  cause  is  for  the  purpose 
of  obtaining  leave  to  institute  the  proceeding,  but  it  is  com- 
menced by  the  information,  (j) 

It  is  stiid  that  "in  this  country  it  seems  to  be  not  an 
unusual  practice  for  the  information,  whether  it  be  for  an 
intrusion  into  or  usurpation  of  an  office,  or  for  an  assump- 
tion or  continued  exercise  of  corporate  powers  without 
right,  to  set  forth  specially  the  right  of  the  relator  who 
claims  the  office,  as  well  as  the  usurpation  of  the  defend- 

{x)  21  111.  65  ;  68  111.  252. 

{y)  Ang,  &  Ames  on  Corp.,  sec.  751;  5  Binn-  353;  44  III.  458.     See 
Rev.  Stat.  (1877)  748. 


i 


QXJO  WARRANTO.  699 

Defenses — Pleas. 

ant."  (z)  And  it  appears  that  in  New  York,  when  the 
relator  is  claimant  of  the  office,  he  is  considered  as  a  co- 
plaintiff  with  the  People,  in  whose  name  the  information 
runs  ;  and  judgment  may  be  rendered  to  oust  the  defendant  » 
and  induct  the  relator,  or  mereh'  to  oust  the  defendant,  (a) 
But  this  practice  would  seem  to  be  inconsistent  with  the 
theor}'  of  the  proceeding,  and  to  involve  a  material  change 
in  the  rules  of  pleading  and  evidence  in  informations  of  this 
kind. 

See  the  substance  of  an  information  against  certain  per- 
sons exercising  the  office  of  bridge-commissioners,  14  111. 
476. 

DEFENSES. 

For  pleas  in  abatement,  see  the  forms  in  assumpsit,  ajifc, 
chapter  III. 

Picas  to  the  information. — The  defendant  must  either 
justify  or  disclaim.  If  he  justifies,  he  must  set  out  his  title 
fully  and  particularly,  showing  by  what  right  he  uses  or 
holds  the  franchise  or  office  ;  and  general  allegations  are 
insufficient,  {h)  Not  guilty,  and  nan  usur^avit,  are  not 
good  pleas,  for  they  do  not  answer  to  the  nature  of  the 
charge,  which  is  to  show  by  what  warrant  or  authority  the 
defendant  uses  the  franchise,  etc.  (c) 

The  People,  in  this  proceeding,  is  not  required  to  show 
anything,  at  least  in  the  first  instance,  but  the  entire  bur- 
den is  on  the  defendant;  and  (unless  he  disclaims)  he  must 
show  by  his  plea,  and  prove,  that  he  has  a  valid  title  to  the 
office  or  franchise.  He  must  set  out  by  what  warrant  he 
exercises  or  uses  such  office  or  franchise,  and  must  show 
good  right  thereto,  or  the  People  will  be  entitled  to  judg- 
ment of  ouster,  {d) 

(z)  Ang.  &  Ames  on  Corp.  sec,  756.     See  I  Scam.  215  ;  15  111.  213. 

(rt)   16  Barb.  370;  Ang,  &  Ames  on  Corp.  sec.  756. 

{b)  15  111.  213;  4  Cow.  118;  84  111,  426;  90  111.  434, 

(c)  Bull,  N.  r.  211  ;  4  Gow,  118;  106  111.  237. 

{d)  21  111.  65 ;  IS  Johns.  358;  3  Pike,  572;  90  111,  434. 


;00  QUO  WARRANTO. 

Plea  by  corporation,  etc. — To  information  at  instance  of  relator. 


]Vo.  314.     Pica  by  a  corporation,   to  an  information  by 
the  attorney-general. 

In  the Circuit  Court. 

Term,  18—. 

The Company  ^  Information  in  nature  of  quo 

ats.  >  warranto. 

The  People,  etc.  )    And  now  on  this  day  comes 

the  said Company,  by  J.  K.,  its  attorne}^  and 

having  heard  the  said  information  read,  for  plea  in  this 
behalf  sa3'^s,  that  [kcre  set  forth  the  title  to  the  franchises, 

etc.) :     And  by  this  warrant  the  said Company 

has  used  during  all  the  time  in  the  said  information  men- 
tioned,   and  still   uses,   the   said  liberties,   privileges    and 

franchises  of,  etc.,  etc.,  as  the  said Company 

well  might,  and  still  may ;  without  this,  that  the  said 

Company  has  usurped,  or  now  does  usurp,  the  liber- 
ties, privileges  and  franchises  aforesaid,  or  any  or  either  of 
them,  upon  the  said  People,  as  by  the  said  information  is 

above   supposed.  .  All  which  matters  the  said 

Company  is  ready  to  verify,  etc. ;  wherefore  it  prays  judg- 
ment, etc. 

jSfo.  315.     Plea  to  an  information  at  the  instance  of  a 

relator. 

In  the Circuit  Court. 

Term,  18—. 

C.  D.  ^ 

ats.  1  Information  in  nature  of  ^?^<? 

The  People,  etc.,  ex  rel.  [  warra^iio. 

E.  F.  J      And  now  on  this  day  comes 

the  said  C.  D.,  by  L.  M.,  his  attorney,  and  having  heard 
the  said  information  read,  for  plea  in  this  behalf  says,  that 
{here  set  out  the  election,  aff  ointment,  or  grant,  and 
everything  necessary  to  show  a  good  title  to  the  office  or 
franchise) :  And  by  this  warrant  the  said  C.  D.  has  held 
and  executed  during  all  the  time  in  the  said  information 
mentioned,  and  stilfholds  and  executes,  the  said  office  {or 

"franchise,"  or  "office  and  franchise")  of ,  as  he 

well  might  and  still  may  ;  without  this,  that  he  the  said 
C.  D.  has  usurped,  or  now  does  usurp,  the  office  {or  "fran- 
chise," etc.,)  aforesaid  upon  the  said  People,  as  'ly  the  said 


A 


QXJO  WARRANTO.  701 

Pleas — Observations — Replication,  etc. 

information  is  above  supposed.  All  which  matters  the  said 
C.  D.  is  ready  to  verity,  etc.;  wherefore  he  prays  ji^igment, 
etc. 

The  precedents  of  pleas  usually  commence  with  a  pro- 
testation of  the  insufficiency  of  the  information,  but  this 
seems  to  be  unnecessary. 

Various  forms  of  pleas  in  bar  will  be  found  in  4  Cow.  R. 
114,  6  Cow.  R.  196,  15  Johns.  R.  363,  10  Mass.  R.  295, 
2  Halst.  R.  201,  and  5  Day's  Cas.  Err.  330;  and  the  sub- 
stance of  a  plea,  adjudged  sufficient,  to  an  information 
against  certain  persons  for  exercising  the  office  of  bridge- 
commissioners,  is  given  in  14  III.  R.  476.  A  number  of 
EHglish  forms  of  pleas  and  subsequent  pleadings  will  be 
found  in  6  Wentw.  PL  28  to  242. 

The  plea  in  bar  should  set  out  the  defendant's  title  at 
length,  and  conclude  with  a  general  traverse,  "without 
this,  that  he  usurped,  etc."  {c)  And  where  the  title  set 
forth  is  bad,  but  the  user  confessed,  this  amounts  to  a  con- 
fession of  the  usurpation.  (_/") 

The  defendant  may  either  disclaim  as  to  all  the  franchises 
mentioned  in  the  information,  or  plead  as  to  all ;  ©r  he  may 
plead  as  to  part  and  disclaim  as  to  part.  See  the  forms  of 
disclaimers  in  4  Cow.  R.  113,  from  2  Kyd  on  Corp.  405. 

Rcfli cation,  etc. — After  plea,  the  attorney  for  the  state 
demurs  or  replies,  and  the  subsequent  proceedings  are  in 
the  same  manner  as  in  civil  actions.  (^)  Where  several 
things  are  necessary  to  make  a  complete  title  in  the  defend- 
ant, the  attorney  for  the  state  may  take  issue  on  each  ;  and 
if  any  one  of  the  issues,  on  a  matter  essential  to  the  title, 
is  found  against  the  defendant,  thore  shall  be  judgment 
of  ouster.  (/^) 

(e)  Gilb.  Rep.  145;  4  Cow.  113. 

(/)  I  Burr.  302,  305;  4  Cow.  113. 

(^)  4  Cow.  118;  2  Kyd  on  Corp.  406. 

(h^  4  Cnw.  iiS;  Bac.  Abr.  Inf.  D:   i  T.  R.  455. 


702  QUO  WARRANTO. 

Demurrers — Authorities. 

The  replication  should  not  take  issue  on  the  general 
traverse,  "without  this,  that  he  usurped,  etc.,"  but  should 
be  to  the  special  matter,  that  the  defendant  may  know  how 
to  apply  his  defense.  (/) 

Demurrers. — See  the  precedents  in  assumpsit,  avte^ 
chapter  III. 

Authorities. — For  an  excellent  summary  of  the  law  In 
relation  to  informations  in  the  nature  of  a  quo  zvarravlo, 
see  the  note  to  People  v.  Richardson,  4  Cow.  R.  97  ;  and 
see  also  Ang.  &  Ames  on  Corp.,  sec.  731  to  765,  and  Abh. 
Dig.  Corp.  595  to  600. 

(/)  4  Cow.  118;  Bac.  Abr.  Inf.  D. 


CERTIORARI.  70: 


The  common-law  writ. 


CHAPTER  X\'II. 


CERTIORARI. 


Certiorari  Is  the  name  of  a  judicial  writ  issued  b}'  a 
superior  court,  directed  to  one  of  an  inferior  jurisdiction, 
commanding  the  latter  to  certify  and  return  to  the  former 
the  record  in  the  particular  case,  (a) 


I.       THE    COMMON-LAW   WRIT. 

The  only  office  which  the  common-law  writ  of  certiorari 
performs,  is  to  cause  the  record  of  a  proceeding  to  be  cer- 
tified from  an  inferior  to  a  superior  tribunal.  Upon  service 
of  the  writ,  it  becomes  the  duty  of  the  inferior  tribunal,  to 
which  it  is  directed,  to  transmit  a  full  and  complete  tran- 
script of  the  record  of  the  proceeding,  of  which  complaint 
is  made,  to  the  court  awarding  the  writ.  Nothing  outside 
of  the  record  should  be  certified,  but  simpl}-  the  record 
itself.  Upon  the  return  of  the  writ,  the  cause  is  tried 
solely  upon  the  record  ;  and  allegations  in  the  petition,  of 
matters  outside  of  the  record,  will  not  be  considered.  No 
trial  can  be  had  upon  any  issue  of  fact.  When  the  return 
is  sufficient,  the  court  will  determine,  upon  the  record  alone, 
whether  the  inferior  tribunal  had  jurisdiction  of  the  parties 
and  of  the  subject-matter,  and  whether  it  had  exceeded  its 
jurisdiction,  or  otherwise  proceeded  in  violation  of  law. 
The  common-law  proceeding  is  wholly  diflerent  from  that 

CO   109  111.  379;   no  Til.  78;  27  111.  140;  20  Bradw.  631  ;   113  111.  1545  99 
111.  171;  19  Biadw.  100, 
45 


704  CERTIORARI. 


The  common-law  writ. 


under  the  statutory  writ  oi  certiorari,  (in  Illinois,)  as  in  the 
latter  there  is  a  trial  de  novo,  {h) 

The  common-law  writ  of  certiorari  may  issue  to  all  in- 
ferior tribunals,  in  cases  where  they  have  exceeded  their 
jurisdiction,  and  in  cases  where  they  have  proceeded  ille- 
gally, and  there  is  no  appeal,  or  other  mode  of  directly  re- 
viewing their  proceedings.  These  are  the  only  instances 
in  which  the  proceedings  of  such  inferior  tribunals  can  he 
reviewed  on  certiorari,  {c) 

The  writ  is  obeyed  by  returning  and  certifying  the  record 
of  the  proceedings  of  the  inferior  tribunal,  or  the  entries 
made  by  it  in  the  nature  of  a  record.  A  common-law  cer- 
tiorari removes  nothing  more ;  and  if  the  return  contains 
anything  more,  it  will  be  rejected  or  disregarded  -pro 
tanto.  (d)  The  writ  can  not,  in  general,  bring  up  for  re- 
view the  evidence,  and  the  rulings  and  decisions  of  the  in- 
ferior tribunal  thereon,  but  only  the  record.  When  there 
is  technically  no  record,  the  written  proceedings  and  orders, 
or  a  history  of  the  proceedings  and  the  written  orders,  which 
are  in  the  nature  of  records,  are  to  be  certified,  (e) 

If  the  writ  has  issued  in  an  improper  case,  the  defendant 
may  move  to  quash  it;  and  the  court  will  quash  it,  even 
after  a  return,  and  a  hearing  on  the  merits.  (/") 

See  a  petition  for  a  common-law  certiorari,  20  111.  R.  537. 

This  writ  is  sometimes  used  as  an  auxiliary  process  to 
obtain  a  full  return  to  some  other  process.  For  example, 
when  the  record  of  an  inferior  court  is  taken  before  a  supe- 
rior court  by  appeal,  writ  of  error,  or  otherwise,  and  a  sug- 
gestion of  a  diminution,  etc.,  is  made,  a  ce?'tiorari  will  be 
granted,  requiring  a  true  record  to  be  sent  up.  (^) 

{l>)  27  111.  143;  38  111.  104;  22  111.  333;  100  111.  94;  20  Bradw.  631 ;  loS 
111    137;  109  111.  379, 

{c)  22  111.  loS ;  14  111.  381 ;  13  111.  660  ;  25  111.  43 ;  66  111.  256 ,  SS  111.  26; 
IC9  111.  142;  113  111.  154, 

(d)  2  Hill,  9;  Green's  Pr.  497;   107  111,  95. 

(e)  25  Wend.  168.     See  88  111.  26,  loo;  10  Bradw.  204. 
(/)  2  Hill,  9;  I  How.  Pr.  141 ;  no  111.  78. 

(  .,")  I  Scam.  567;  2  Scam.  361  ;  40  111.  63,  66;  3  Johns.  23;  7  Cranch,  2SS; 
I  Blackf.  22.     See  no  111.  78;  104  111.  g^- 


CERTIORARI. 


/^o 


The  statutory  writ — Statutes  of  Illinois. 


II.       THE    STATUTORY    WRIT. 

The  statute  of  Illinois  provides  as  follows  : 

"The  judges  of  the  courts,  to  which  appeals  ma}^  be 
taken,  shall  have  power,  within  their  respective  jurisdic- 
tion, and  it  shall  be  their  duty,  upon  petition  made  as  here- 
inafter mentioned,  to  grant  writs  of  certiorari.,  to  remove 
causes  from  before  justices  of  the  peace  into  their  courts, 
who  shall  indorse  an  order  for  the  same  upon  the  petition 
of  the  party  praying  such  writ ;  and  on  producing  the  same 
to  the  clerk  of  the  court,  he  shall  issue  said  writ  in  con- 
formity to  the  provisions  of  this  act. 

"  The  petition  for  a  writ  oi  certiorari  shall  set  forth  and 
show,  upon  the  oath  of  the  applicant,  or  his  agent,  that  the 
judgment  before  the  justice  of  the  peace  was  not  the  result 
of  negligence  in  the  party  pra3'ing  such  writ ;  that  the 
judgment,  in  his  opinion,  is  unjust  and  erroneous,  setting 
forth  wherein  the  injustice  and  error  consists,  and  that  it 
was  not  in  the  power  of  the  part}''  to  take  an  appeal  in  the 
ordinary  way,  setting  forth  the  particular  circumstances 
which  prevented  him  from  so  doing. 

'*No  writ  oi  certiorari  shall  issue  after  the  expiration  of 
six  months  from  the  time  of  the  rendition  of  judgment. 

"Before  any  writ  oi  certiorari  shall  issue,  the  party  ap- 
plying therefor  shall  give  bond,  with  security,  in  the  same 
manner  and  with  the  same  conditions,  and  when  the  same 
shall  be  defective,  may  be  perfected  as  bonds  in  cases  of 
appeals  from  justices  of  the  peace.  The  writ  oi  certiorari 
shall  require  the  justice  to  certify  to  the  court  issuing  the 
writ  a  transcript  of  the  judgment  and  other  proceedings 
had  before  him  ;  and  in  no  case  shall  the  justice  be  re- 
quired to  send  up  a  minute  or  memorandum  of  the  evidence 
given  before  him  ;  but  upon  the  return  of  said  writ,  such 
proceedings  shall  be  had  thereon  as  in  cases  of  appeals."  (^) 

{K)  2  Starr  &  Curtis'  An.  Stat.  1461-2  ;  Rev.  Stat.  (1S77)  618.  See  I  Scam 
264,  566;  4  Gilm.  363 ;  14  111.  35 ;  16  111  275.  294;  17  111.  31 ;  23  111.  337;  25 
111.  575;  26  111.  243;  68  111.  64;  17  Bradw.  285. 


'7o6  CERTIORARI. 


The  statutory  writ — Requisites  of  petition,  etc. 


The  Statute  also  provides,  that  one  or  more  of  several 
plaintiffs  or  defendants  may  sue  out  a  certiorari^  without 
the  consent  of  the  others  ;  and  all  further  proceedings  are 
thereupon  to  be  stayed,  the  same  as  if  all  had  united  in 
such  certiorari,  (i) 

A  writ  of  certiorari  is  also  given  in  cases  arising  under 
chapter  64  of  the  Revised  Statutes  of  Illinois,  entitled 
Licenses ;  (j?)  and  in  cases  of  the  trial  of  the  right  of  prop- 
erty, before  justices  of  the  peace.  (Jc) 

Masters  in  chancery,  in  their  respective  counties,  may 
order  the  issuing  of  writs  of  certiorari^  to  remove  causes 
from  before  justices  of  the  peace  into  the  proper  court.  (/) 

Requisites  of  petition  ^  etc. — A  petition  for  a  writ  of  cer- 
tiorari must  clearly  point  out  wherein  the  injustice  of  the 
judgment  complained  of  consists.  Allegations  of  injustice, 
made  in  general  terms,  will  not  suffice.  It  must  state  facts 
sufficient  to  show  that  injustice  has  been  done,  iiii) 

The  statute  requires  that  the  petition  "shall  set  forth  and 
show  that  the  judgment  before  the  justice  of  the  peace  was 
not  the  result  of  negligence."  This  requirement  can  only 
be  fulfilled  by  setting  forth  facts  which  show  that  the  party 
was  not  guilt}^  of  negligence  in  not  attending  to  the  defense 
of  the  cause  before  the  justice.  The  mere  statement  that  the 
judgment  was  not  the  result  of  the  negligence  of  the  peti- 
tioner, does  not  show  that  such  was  the  case  ;  that  is  a  con- 
clusion for  the  court  to  draw  from  the  facts  alleged.  {11) 

Where  a  party  permits  a  judgment  to  go  by  default,  be- 
fore a  justice  of  the  peace,  with  the  intention  of  taking  an 
appeal  to  the  circuit  court,  and   contesting  the  merits  in 

()■)  2  Starr  &  Curtis'  An.  Stat.  1454;  RevJ  Stat.  (1877)617;   16  111.  39. 
[j)  Gross'  Stat.  422. 

(k)  2  Starr  &  Curtis'  An.  Stat.  1469;  Rev.  Stat.  (ICS77)  621. 
(/)  2  Starr  &  Curtis'  An.  Stat.  1599;     Rev.  Stat.  (1877J  660, 
\m)  25  111.  575;  26  111.  243;  16  111.  275  ;   9  Mich,  in  ;  9  Iowa,  583;  78  HI- 
391  ;   6  Bradw.  353. 

(n)  23  111.  337;  17  111.  31;  25  111.  579;   61  111.  4S5;    88  111.  579. 


CERTIORARI.  707 


The  stPtutory  writ — Requisites  of  petition,  etc. 


that  court,  a  petition  for  a  certiorari  will  not  be  sustained. 
Diligence  must  be  used  to  prevent  the  judgment  in  the 
justice's  court,  io) 

It  is  not  sufficient  to  aver  that  the  justice,  in  receiving  01 
rejecting  testimony,  or  in  any  matter  arising  upon  the  trial, 
erred  in  point  of  law,  if  the  petitioner  is  not  injured  by 
the  final  determination,  in  the  amount  of  the  judgment 
recovered.   {j>) 

Where  a  petition  is  based  on  the  ground  that  the  peti- 
tioner did  not  know  of  the  rendering  of  a  judgment  against 
him,  until  the  twent}'  days  in  which  the  appeal  might  have 
been  taken  had  elapsed,  by  reason  of  his  being  misled  by 
the  opposite  party,  he  should  state  how  and  by  what  he 
was  misled  ;  and  he  should  show  diligence,  by  an  inspec- 
tion of  the  justice's  docket  or  otherwise,  to  ascertain  what 
order  had  been  made  in  the  suit,  or  some  reason  why  this 
was  not  done,  [q) 

The  petition  must  also  allege  that  it  was  not  in  the  power 
of  the  party  to  take  an  appeal  in  the  ordinary  way,  and 
must  set  forth  particularly  the  circumstances  that  prevented 
him  from  so  doing,  (r) 

Where  a  petition  alleged  that  the  petitioner  was  a  poor 
man,  and  that  it  took  him  several  days  after  the  rendition 
of  judgment  to  procure  security  on  the  appeal-bond ;  that 
fourteen  or  fifteen  days  after  the  rendition  of  judgment  he 
called  at  the  justice's  office  for  the  purpose  of  procuring  the 
proper  papers  and  perfecting  his  appeal,  but  the  justice 
was  absent  from  his  office,  and  the  petitioner,  after  diligent 
inquiry,  was  unable  to  learn  where  he  was  ;  that  on  the  last 
day  when  he  could  have  taken  the  appeal,  he  again  called 
at  the  justice's  office,  and  again  failed  to  find  him,  making 
_  the  same  inquiry  as  at  the  first  time  :  it  was  decided  that 

{0)   l6  111.  276;  4  Bradw.  154. 
(/)  16  111,  293;  S8  111.  579. 

(-7)  26  111.  243.  See  86  111.  396;  78  111.  391 ;  4  Bradw.  154. 
(/•)  I  Scam.  565.  See  4  Gilm.  363;  26  III.  243;  25  111.  575  ;  14  111.  144;  85 
111.  290;  17  Bradw.  285. 


■08  CERTIORARI. 


The  statutory  writ — Requisites  of  petition,  etc. 


sufficient  diligence  was  not  shown.  No  reason  appeared 
why  the  petitioner  did  not  enter  his  appeal  with  the  clerk 
of  the  court.  (5) 

Where  a  petition  states  that  the  petitioner  had  been  sum- 
moned as  garnishee  in  a  number  of  cases,  before  the  same 
justice  of  the  peace,  and  was  discharged  after  examina- 
tion, by  the  justice,  and  had  no  knowledge  that  a  judgment 
was  rendered  against  him,  until  it  was  too  late  to  take  an 
appeal,  and  that  the  judgment  was  unjust,  showing  wherein, 
he  can  have  relief  by  writ  of  certiorari.    {J) 

Where  a  petition  of  a  guardiaa,  lor  a  writ  of  certiorari^ 
stated  that  he  was  taken  sick  shortly  after  the  service  of 
process  upon  him,  an-^  continued  unable  to  transact  busi- 
ness until  after  the  trial ;  that  as  soon  as  he  was  able  to  at- 
tend to  business,  and  within  twenty  days  after  judgment, 
he  demanded  an  appeal,  which  was  refused  on  the  ground 
that  it  should  have  been  taken  on  the  day  of  trial ;  and  that 
the  judgment  was  not  upon  a  valid  claim  against  the  estate; 
it  was  held  that  the  petition  entitled  the  guardian  to  the 
writ,  [ji) 

A  petition  for  a  certiorari^  to  bring  up  the  proceedings 
had  before  a  justice  of  the  peace,  must  stand  on  its  merits  ; 
atiidavits  in  support  of  it,  or  against  it,  can  not  be  read,  iv) 

The  court  will  take  into  consideration  the  condition  of  a 
party,  where  he  shows  in  his  petition  circumstances  that 
prevented  his  using  diligence  ;  as  that  he  was  a  physician, 
and  was  necessarily  attending  upon  patients,  dangerously 
ill,  etc.  ;  or  that  he  was  sick  at  the  time  the  judgment 
was  rendered  against  him,  and  unable  to  attend  the  trial, 
etc.  {vj) 

Where  a  statute  gives  an  appeal  from  an  assessment  of 
damages  for  a  right  of  way,  a  certiorari  will  be  sustained, 


(s)  2  Gilm.  65  ;  17  Bradvv.  285. 

{t)  27  111.  9I;  19  Bradw.  185. 

(m)   14  111.  35;  68  111.  64. 

(y)  26  111.  243  ;  25  111.  575  ;  86  111.  396. 

(w)  13  111.  144;  14  111.  35  ;    2  Gilm.  65. 


CERTIORARI.  709 


Petition  for  certiorari  to  J.  P. 


it  appearing  that  the  petitioner 'liad  no  notice  of  the  assess- 
ment, or  opportunity  to  appeal.  A  certiorari  in  such  a 
case  is  in  the  nature  of  an  appeal  from  the  decision  of  a 
justice  of  the  peace,  and  governed  by  the  same  rules,  {x) 

No.  316.     Petition  for  a  certiorari  to  a  justice  of  the 

peace. 

To  the  Honorable  L.  M.,  Judge  of  the Court  of  the 

county  of ,  in  the  state  of  Illinois. 

Your  petitioner,  A-  B.,  of,  etc.,  complaining  shows,  that 

C  D.,  of,  etc.,  on  the  day  of,  etc.,  commenced  an 

action  against  your  petitioner,  before  one  G.  H.,  then  and 
still  being  one  of  the  justices  of  the  peace  in  and  for  the 
said  county  of ,  to  recover  the  sum  of dollars,  al- 
leged to  bg  due  from  your  petitioner  to  the  said  C.  D.,  for 
{here  the  subject-matter  of  the  alleged  debt  may  be  stated)  ; 
and  that  afterwards,  on,  etc.,  the  said  justice  rendered 
judgment  against  your  petitioner,  in  that  action,  for  the 
sum  of dollars,  and  costs  of  suit :  which  matters  afore- 
said appear  to  your  petitioner  from  the  docket  of  the  said 
justice,  and  the  papers  in  that  behalf  tiled  and  remaining 
in  his  office.  And  3'our  petitioner  further  shows,  that  at 
the  time  of  the  commencement  of  the  said  action,  and  from 
thence  continually  until  more  than  twenty  days  had  elapsed 
after  the  rendition  of  the  said  judgment  as  aforesaid,  your 
petitioner  was  absent  from  this  state  ;  and  that  during  all 
that  time  your  petitioner  had  no  knowledge  or  information 
of  the  commencement  or  pendency  of  the  said  action,  or  of 
the  rendition  of  the  said  judgment,  as  aforesaid ;  and  that 
therefore  your  petitioner  could  not  take  an  appeal  from  the 
said  judgment  in  the  ordinary  way.  And  your  petitioner 
further  shows,  that  he  was  not  at  the  time  of  the  commence- 
ment of  the  said  action  as  aforesaid,  nor  is  now,  in  any 
manner  indebted  to  the  said  C.  D.  ;  and  that  the  said  judg- 
ment is  therefore  wholly  unjust  and  erroneous.  Your  peti- 
tioner therefore  prays  a  writ  of  certiorari,  to  remove   the 

said  cause  fVom  before  the  said  justice  into  the  said  

Court,  according  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

A.  B. 

^r)  24  111.  562;  5S  III.  422;    99  III.  171. 


7IO  CERTIORARI. 


The  statutory  writ — Observations. 


State  of  Illinois,  > 

County  of ,     >  set.     A.    B.,    the   petitioner  in   the 

foregoing  petition  named,  makes  oath   and  says,  that  the 
matters  and  things  in  the  said  petition  contained  are  true 
in  substance  and  in  fact. 

A.  B. 

Subscribed  and  sworn,  etc. 

If  made  by  an  agent,  the  affidavit  may  be  as  follows  r 
*'J.  K.  makes  oath  and  says,  that  he  is  the  agent  in  this 
behalf  of  A.  B.,  the  petitioner  in  the  foregoing  petition 
named  ;  and  that  the  matters  and  things  in  the  said  petition 
contained  are  true,  to  the  best  of  this  affiant's  knowledge, 
information  and  belief." 

See  a  petition  for  a  certiorari^  by  a  garnishee,  37  III. 
R.  91. 

The  statute  of  Illinois  provides,  that  "  the  justice  of  the 
peace,  constables,  and  other  persons  concerned,  shall,  as 
soon  as  the  writ  of  certiorari  shall  be  served  on  such 
officers,  stay  all  further  proceedings  in  that  case,  until  the 
further  order  of  the  court  issuing  the  writ."  (  r) 

Where  a  cause  is  taken  up  by  certiorari,  the  trial  is  to 
be  de  novo,  as  in  cases  of  appeal.  {£)  The  justice  is  not 
required  to  make  any  formal  return  to  the  writ ;  his  only 
duty  is  to  send  up  the  papers  and  proceedings ;  and  if  the 
writ  is  served  and  returned,  and  its  mandate  is  not  obeyed, 
an  attachment  may  issue  against  the  justice,  [a)  Where 
the  papers  and  a  transcript  of  the  proceedings  are  filed  in 
the  court,  the  issuing  of  a  certiorari  to  the  justice  is  unnec- 
essary, [b) 

The  dismissal  of  an  appeal,  or  a  certiorari,  is  equivalent 
to  an  affirmance  of  the  judgment,  so  a;^  to  entitle  the  party 


(f)  2  Starr  &  Curtis'  An.  Stat.  1462;  Rev.  Stat.  ^1877)  619;  99  111.  587. 
(s)  12  111.  143;  26  111.  562;    loS  111.  137,    loy  111.  379. 
[a)   12  111.  143;  4  Bradw.  180. 
(6)   12  111.  162,  143. 


CERTIORARI.  "jii 


The  statutory  writ — Observations. 


to  claim  a  forfeiture  of  the  bond,  and  to  have  his  action 
thereon,  {c) 

By  the  statute,  if  the  judgment  of  the  justice  is  reversed, 
in  whole  or  in  part,  such  reversal  does  not  vitiate  any  sale 
on  execution,  effected  before  the  issuing  of  the  certiorari ; 
but  in  such  cases  the  court  may  assess  the  damages  which 
have  accrued  in  consequence  of  such  sale,  and  "cause  judg- 
ment to  be  entered  or  a  deduction  made  therefor."  In  case 
of  a  partial  reversal  of  the  judgment,  the  costs  may  be  ap- 
portioned, {d) 

(r)  2  Scam.  571 ;  6l  111.  485;  6  Bradw.  593. 

{d)  2  Starr  &  Curtis'  An.  Stat.  1463;  Rev.  Stat.  (1S77)  619;  43  111.  447;  72 
111.  464. 


712  HABEAS   CORPUS. 

History  of  the  remedy,  etc. 


CHAPTER  XVHI. 


HABEAS     CORPUS. 


The  writ  of  habeas  corpus  is  an  ancient  English  writ, 
used  lor  a  variety  of  purposes  from  a  remote  antiquity. 
One  of  the  purposes  for  which  it  was  used  was  to  recover 
freedom  which  had  been  wrongfully  taken  away.  Per- 
sonal liberty  was  always  asserted  by  the  common  law,  from 
its  earliest  ages  ;  and  it  was  always  assailed  by  kings  who 
would  be  tyrants,  and  with  an  earnestness  proportioned  to 
their  t3'ranny.  Plence  it  became  necessary  to  declare  thi? 
principle  in  the  most  solemn  manner  in  Magna  Charta, 
(a.  d.  1215.)  But  before  the  31st  year  of  the  reign  of 
Charles  H,  (a.  d.  1679,)  its  benefits  were  in  a  great  de- 
gree eluded  by  time-serving  judges,  who  awarded  it  only 
in  term-time,  and  who  assumed  a  discretionary  power  of 
awarding  or  refusing  it.  The  writ  was  evaded  by  courts 
and  sheriffs  who  were  disposed  to  support  royal  and  minis- 
terial usurpations ;  and  it  became  so  powerless,  that  early 
in  the  reign  of  Charles  I,  (1626,)  the  Court  of  King's  Bench 
formally  decided  that  it  had  no  power  to  release  any  person 
imprisoned  without  any  cause  assigned,  if  he  was  impris- 
oned by  the  express  command  of  the  king,  or  by  the  lords 
of  the  privy  council.  The  petition  of  rights,  of  the  third 
year  of  the  reign  of  Charles  I,  (a.  d.  1628,)  asserted  the 
illegality  of  this  decision,  and  declared  that  "  no  freeman 
should  be  imprisoned  or  detained  without  cause  shown,  to 
which  he  may  make  answer  according  to  law."  But  the 
means  of  enforcing  this  rule  were  still  imperfect,  and  per- 
sonal libertv  was  still  violated  ;  and  by  16  Charles  I,  chap. 


HABEAS   CORPUS.  713 

History  of  the  remedy,  etc. 

10,  (a.  d.  1641,)  various  provisions  were  enacted,  intended 
to  make  the  writ  of  habeas  corpus  more  effectual.  But  this 
was  not  enough.  The  judges  still  continued  to  refuse  the 
writ  at  their  pleasure ;  and  prisoners  were  sent  to  distant 
jails,  and  sheriffs  and  jailers  refused  to  obey  it;  or  if  the 
person  imprisoned  was  brought  before  an  examining  court, 
his  liberty  was  still  denied  him  on  frivolous  pretenses.  To 
secure  the  full  benefits  of  the  writ  to  the  subject,  the  statute 
of  31  Charles  II,  chap.  2,  (1679,)  commonly  called  the 
habeas  corpus  act,  was  passed.  This  gave  to  the  writ  the 
vigor,  life  and  efficacy  requisite  for  the  due  protection  of 
the  liberty  of  the  subject.  This  act  consisted  of  a  variety 
of  provisions,  devised  with  so  much  skill,  and  so  well 
adapted  to  give  each  other  mutual  support,  that  it  may 
safely  be  asserted  that  personal  liberty  will  be  safe,  in 
England  and  the  United  States,  so  long  as  this  law  remains 
in  force.  Evasion  of  it  is  almost  impossible  ;  and  it  can  be 
made  ineffectual  only  by  a  positive  and  open  violation  of  its 
essential  provisions,  or  by  a  distinct  denial  of  its  interposi- 
tion. The  enactment  of  this  great  "  palladium"  of  English 
liberty  was  secured  after  persistent  efforts  on  the  part  of 
Lord  Shaftesbury  and  other  friends  of  liberty  in  Parlia- 
ment. The  bill  only  passed  the  House  of  Lords  by  an 
erroneously  reported  vote  of  fifty-seven  to  fifty-five.  It  is 
alleged  by  a  cotemporary  writer  that  it  was  passed  by  a 
foolish  jest  and  falsehood.  («)  The  manner  of  its  passage 
is  related  to  have  been  as  follows  : — The  bill  had  passed 
the  House  of  Commons,  and  was  taken  to  the  House  of 
Lords.  When  the  question  was  about  to  be  taken  in  that 
house,  "Lords  Grey  and  Norris  were  named  to  be  the 
tellers.  Lord  Norris,  being  a  man  subject  to  vapors,  was 
not  at  all  times  attentive  to  what  was  doing.  So,  a  very 
fat  lord  coming  in,  Lord  Grey  counted  him  for  ten,  as  a 
jest  only  at  first ;  but  seeing  Lord  Norris  had  not  observed 
it,  he  went  on  with  his  misreckoning  of  ten,  and  so  it  was 

(a)  Bishop  Burnet's  History  of  His  Own  Times. 


714  HABEAS   CORPUS. 

Constitutional  provisions,  etc. — Statute  of  Illinois. 

reported  to  the  house,  and  declared  that  they  who  were  for 
the  bill  were  in  a  majority,  though  it  indeed  went  on  the 
other  side."  Shaftesbury,  who  presided  as  Lord  Chancel- 
lor, then  spoke  until  members  had  come  and  gone,  so  that 
the  house  could  not  be  retold,  and  the  mistake  corrected. 
The  bill  was  approved  by  the  king,  and  became  a  law. 
Lord  Campbell,  in  his  life  of  Lord  Shaftesbury,  says  that 
"there  must  have  been  some  mistake  in  the  return  of  the 
votes  upon  the  bill,  because  the  journal  of  the  House  of 
Lords  .  shows  that  the  whole  number  of  lords  present  was 
one  hundred  and  seven,  while  the  bill  was  declared  passed 
by  fifty-seven  to  fifty-five. 

Although  this  great  act  may  have  been  procured  by  a 
jest  and  unfair  means,  and  at  a  period  of  turbulence  and 
disorder,  it  is  one  of  the  most  salutary  measures  ever  passed 
by  the  British  Parliament,  and  renders  the  year  1679  a 
most  important  era  in  the  history  of  constitutional  liberty. 

The  habeas  corpus  act  has  been  substantially  incorpo- 
rated into  the  jurisprudence  of  every  state  in  the  Union  ;  {h) 
and  the  right  to  the  writ  has  been  secured  by  the  constitu- 
tions of  most  of  the  states,  and  by  that  of  the  United  States. 

The  constitution  of  the  United  States,  art.  i,  sec.  9,  par. 
2,  provides,  that  "the  privilege  of  the  writ  oi  habeas  corpus 
shall  not  be  suspended,  unless  when,  in  cases  of  rebelliop 
or  invasion,  the  public  safety  may  require  it." 

By  the  statute  of  Illinois,  the  benefit  of  the  writ  of  habeas 
corf  us  is  given  in  all  cases  where  "any  person  shall  be 
committed  or  detained  for  any  criminal  or  supposed  crim- 
inal matter,"  and  where  "  any  person,  not  being  committed 
or  detained  for  any  criminal  or  supposed  criminal  matter, 
shall  be  confined  or  restrained  of  his  liberty,  under  any 
color  or  pretense  whatever."  And  in  order  to  still  further 
secure  to  the  citizen  the  benefit  of  this  writ,  a  heavy  penalty 
is  imposed  upon  any  judge,  empowered  to  grant  such  writ, 
if  he  corruptly  refuses,  or  unreasonably  delays,  so  to  do ; 


{b)  See  33  111.  446 


HABEAS   CORPUS.  715 

When  it  is  to  be  granted. 

and  upon  any  sheriff,  jailer  or  other  person  who  refuses  or 
evades  obedience  to  such  writ,  (c) 

The  statute  of  IlHnois  will  be  understood  as  referred  to, 
when  any  statutory  provision  is  hereafter  quoted  or  men- 
tioned in  this  chapter. 

When  it  is  to  be  granted. — The  writ  is  to  be  granted 
whenever  a  person  is  in  actual  confinement,  or  restrained 
of  his  liberty,  under  any  color  or  pretense  whatever.  Every 
restraint  upon  a  man's  liberty  is,  in  the  eye  of  the  law,  an 
imprisonment,  wherever  may  be  the  place,  or  whatever 
may  be  the  manner,  in  which  the  restraint  is  efTected.  (c/) 
Words  may  constitute  an  imprisonment,  if  they  impose  a 
restraint  upon  the  person,  and  he  is  accordingly  restrained 
and  submits,  {e)  It  may  be  on  the  public  street,  and 
though  the  part}-  is  not  put  into  any  prison  or  house.  (_/*) 
Whenever  a  person  is  deprived  of  the  privilege  of  going 
when  and  where  he  pleases,  he  is  restrained  of  his  liberty, 
and  has  a  right  to  inquire  if  that  restraint,  whether  by  a 
sherifT,  constable,  or  private  individual,  is  illegal  and 
wrongful.  It  is  not  necessary  that  the  degradation  of  be- 
ing incarcerated  in  a  prison  should  be  undergone,  to  entitle 
any-  citizen,  who  may  consider  himself  unjustly  charged 
with  a  breach  of  the  laws,  to  a  hearing,  {g) 

A  mere  moral  restraint,  however,  is  not  such  an  impris- 
onment as  will  entitle  the  party  to  the  writ.  {Ji)  Persons 
discharged  on  bail  will  not  be  considered  as  restrained  of 
their  liberty,  so  as  to  be  entitled  to  a  writ  of  habeas  cor- 
■pus.  {i) 

It  is  immaterial  whether  the  imprisonment  is  under  crim- 

(c)  I  Starr  &  Curtis'  An.  Stat.  1253;  Rev.  Stat.  (1S77)  543,  545. 

(</)  Hurd  on  J/ai.  Corp.  209;    I  Kent,  631  ;   2  Inst.  4S2. 

(el  I  Kent,  631  ;   Butler  N.  P.  62 ;   9  N.  H.  491;  39  Penn.  Slate  R,  9. 

(/)  Hurd  ffab.  Corp.  210 ;  Bar.  311. 

{g)  2  Ashm,  247 ;  Hurd  Hah.  Corp.  210. 

(h)  Dodge's  case,  6  Mart.  Law  R.  569. 

\i)  I  Bouv.  L.  D.  574;  3  Yeates,  263;   I  Serg.  &  Ra^vle,  356 


7i6  HABEAS   CORPUS. 


When  it  is  to  be  granted. 


inal  or  civil  process  ;  if  it  is  illegal,  the  prisoner  is  entitled 
to  the  benefit  of  the  writ.  (/) 

The  court  has  power,  on  habeas  cor^ns,  to  determine  the 
question  of  the  right  to  the  custody  of  a  child,  {k) 

Before  a  writ  oi  habeas  corpus  is  granted,  sufficient  prob- 
able cause  must  be  shown.  If  it  appears,  upon  the  peti- 
tioner's own  showing,  that  there  is  no  sufficient  ground, 
prima  facie,  for  his  discharge,  the  court  will  not  issue  the 
writ.  It  ought  not  to  be  granted  if  the  court  is  satisfied  that 
the  prisoner  should  be  remanded.  (/) 

In  the  United  States,  the  right  of  bail  has  been  thought 
worthy  of  constitutional  protection.  In  the  federal  consti- 
tution, and  in  the  constitutions  of  nearly  all  the  states,  it  is 
provided  that  "  excessive  bail  shall  not  be  required." 

The  constitution  of  Illinois  provides,  that  "  all  persons 
shall  be  bailable  by  sufficient  sureties,  unless  for  capital 
offenses,  where  the  proof  is  evident  or  the  presumption 
great."  {iii) 

Where  bail,  in  a  bailable  case,  has  been  refused  by  the 
committing  magistrate,  the  writ  of  habeas  corpus  may  be 
granted  for  the  sole  purpose  of  admitting  the  prisoner  to 
bail,  {n)  And  so  when  excessive  bail  has  been  exacted, 
and  it  appears  from  the  petition  that  the  bail  is  unreason- 
able, the  judge  may,  in  the  plenitude  of  that  power  which 
he  possesses  at  common  law,  in  the  sound  exercise  of  his 
discretion,  reduce  the  bail  to  a  reasonable  amount,  {o) 

If  an  affidavit  for  a  capias  ad  respondcnduni,  in  an  ac- 
tion ex  contractu,  does  not  conform  to  the  requirements  of 

(y)  3  Binn.  404;   55  111.    280 ;   74  111.  20. 

{k')  40  N.  H.  272;   I  Geo.  Decis.  93;  103  111.  367. 

(/)  7  Cush.  285;  2M.  &  S.  428;  3  Bulstr.  27;  3  B.  &  Aid.  420;  3  Black. 
132;  2  Jon.  13;  2  Roll.  138,     See  26  111.  532;  6  Wis.  288. 

(w)  Art.  2,  Sec.  7,  Const,  of  Illinois. 

(n)  4  Inst.  290;  2  Ash.  227;  19  Ala.  561 ;  5  Cow.  39;  17  Mass.  116;  I  N. 
H.  374  ;   I  Hill,  398.     See  26  III.  532. 

(0)  17  Mass.  116;  Hurd  Hab.  Corp.  430-449.     See  3  Scam.  19. 


HABEAS   CORPUS.  717 


By  and  to  whom  application  may  be  made. 


the  constitution  (of  Illinois),  a  person  imprisoned  under  the 
cafias  may  be  discharged  on  a  habeas  corpus,  {p) 

By  whom  a;ppltcation  may  be  made. — Although  the  per- 
son imprisoned  has  an  undoubted  right  to  make  the  appli- 
cation, it  is  not  necessary  that  it  should  proceed  directly 
from  him.  It  may  be  made  by  an  agent,  or  friend,  on  be- 
half of  the  prisoner  ;  {q)  or  by  a  wife  on  behalf  of  her  hus- 
band ;  (r)  or  a  husband  on  behalf  of  his  wife,  (s)  But  no 
legal  relation  is  required  to  exist  between  the  prisoner  and 
the  person  making  the  application.  It  may  be  made  by 
any  one.  (/)  Where  the  application  is  by  a  third  person,  \\ 
is  supposed  to  be  made  in  accordance  with  the  wishes  of 
the  person  restrained  of  his  liberty,  and  is  allowed  to  pre- 
vent delay,  where  the  latter  is  represented  to  be  under  any 
disability,  or  in  an}'-  manner  prevented  from  making  the 
application  in  his  own  right,  [u)  But  mere  vol-unteers,  who 
do  not  appear  on  behalf  of  the  prisoner,  or  show  some  right 
to  represent  him,  will  not  be  heard,  (v) 

The  writ  may  be  granted  at  the  instance  of  a  parent  for 
his  child,  (w)  a  guardian  for  his  ward,  (x)  a.  master  for  his 
apprentice,  {y)  or  a  special  bail  for  his  principal,  {z) 

To  -whom  amplication  may  be  made. — In  Illinois,  the  ap- 
plication for  a  writ  of  habeas  corpus  may  be  made  to  the 
Supreme  or  Circuit  Courts  in  term-time,  or  any  judge 
thereof  in  vacation,  {a)     Masters  in  chancery,  in  their  re- 

(■/)    16  111.  347;  20  111.  291  ;  24    111.  553;  26  111.  213;    III  III.  90. 

{q)  14  How.  St.  Tr.  814;  Rev.  Stat.  (1877)  543. 

(r)  Hurd  Hab.  Corp.  211  ;   10  Eng.  L.  &  Eq.  318. 

{$)  4  Burr.  199I;  I  Burr.  606;   Hurd  Hab.  Corp.  211 ;  8  Paige,  47. 

(/)  13  East,  195;  Dudley.  (Geo.)  42. 

(«)  Hurd  Hab.  Corp.  212. 

{v)  3  Burr.  1363;  24  Eng.  L.  &  Eq.  259;   I  Cush.  385. 

{w)  3  Hill,  399 ;  8  Paige  Ch,  47. 

{x)  24  Pick.  227;  10  Pick,  274;  7  Blackf.  559;  6  La.  436. 

(j)   I  Sand.  672. 

{z)  6  Watts,  402;  Pennington,  484;   I  Burr.  339. 

(a)  Rev.  Stat.  (1874)  328,  332;  Rev.  Stat.  (1877)  321,  327. 


7x8  HABEAS  CORPUS. 

Form  of  application. 

spective  counties,  have  power,  in  the  absence  of  the  judge 
from  the  county,  to  order  the  issuing  of  writs  of  habeas 
corpus,  {b)  They  have,  however,  no  power  to  issue  writs  ; 
but  they  may,  by  indorsement  on  the  application,  order  the 
clerk  of  the  Circuit  Court  to  issue  such  writs.  The  writ 
should  not  be  made  returnable  before  the  master,  but  to  the 
Circuit  or  Supreme  Court,  if  in  session,  or,  in  vacation,  be- 
fore some  judge  of  one  of  those  courts,  (c) 

It  is  not  for  the  applicant  to  select,  at  will,  the  judge  to 
whom  he  will  apply,  and  then  compel  the  officer  holding 
him  in  custody  to  convey  him  to  another  part  of  the  state. 
The  application  should  be  made  to  the  judge  in  the  count}* 
or  district  where  the  prisoner  is  detained,  {d)  or,  in  case  of 
his  absence,  to  the  master.  A  judge  of  another  circuit  will 
not  entertain  the  application,  unless  special  reasons  are 
shown  for  his  so  doing. 

Form  of  amplication. — If  the  prisoner  is  committed  or 
detained  for  a  criminal  or  supposed  criminal  matter,  the 
application  must  be  in  writing,  and  signed  by  the  prisoner, 
or  some  person  on  his  behalf,  setting  forth  the  facts  con- 
cerning hi^  imprisonment,  and  in  whose  custody  he  is  de- 
tained ;  and  it  must  be  accompanied  by  a  copy  of  the  war- 
rant or  warrants  of  commitment,  or  an  affidavit  that  such 
copy  has  been  demanded  of  the  person  in  whose  custody 
the  prisoner  is  detained,  and  by  him  refused  or  neglected 
to  be  given.  (<?) 

When  any  person,  not  committed  or  detained  for  any 
criminal  or  supposed  criminal  matter,  is  confined  or  re- 
strained of  his  liberty,  under  any  color  or  pretense  wliat- 
ever,  the  application  for  the  writ  must  be  in  writing,  signed 
by  such  person,  or  some  other  on  his  behalf,  setting  forth 
the  facts  concerning  his  imprisonment,  and  wherein  the 

(J)  2  Starr  &  Curtis'  An.  Stat,  1598;  Rev.  Stat.  (1877)  660. 

(c)  3  Scam.  19. 

{d)   II  Cal.  222. 

\e)   I  Starr  ^  Curtis'  An.  Stat,  1253;   Rev,  Stat.  (1877)  543. 


HABEAS  CORPUS.  719 

Forms  of  petitions. 

illegality  of  such  imprisonment  consists,  and  in  whose  cus- 
tody he  is  detained  ;  and  the  application  or  petition  must 
be  verified  by  the  oath  or  affirmation  of  the  party  applying, 
or  some  other  person  on  his  behalf.  If  the  confinement  or 
restraint  is  by  virtue  of  any  judicial  writ  or  process,  or 
order,  a  copy  thereof  must  be  annexed  to  the  petition,  or 
an  affidavit  made  that  such  copy  has  been  demanded  and 
refused,  {f) 

A  petition  for  a  writ  of  habeas  corpus,  where  the  pris- 
oner has  been  regularl}^  committed,  should  set  forth  the 
evidence  adduced  before  the  examining  magistrate,  so  that 
tlie  court  may  act  advisedly.  The  affidavits  of  the  .peti- 
tioner and  his  counsel,  giving  their  opinions,  will  not  be 
sufficient.  The  court  will  presume  that  the  committing 
magistrate  acted  properly  upon  the  evidence  submitted, 
and  will  sustain  his  proceedings,  preferring  to  rely  upon 
the  presumptions  in  favor  of  the  conduct  of  the  magistrate, 
rather  than  to  take  the  opinions  of  the  accused  or  his  coun- 
sel, {g) 


Xo.    317.     Petition  for  a  habeas  corpus,   zvhcrc  peti- 
tioner is  dctaiTicd  zvii/iout  -warrant ,  etc. 

To  the  Circuit  Court  of  the  county  of ,  in  the  state 

of  Illinois  ((?;-,  in  vacation,  "To  the  Honorable  J.  K., 
judge  of  the judicial  circuit  of  the  state  of  Illinois"). 

The  petitioner,  A.  B.,  of,  etc.,  complaining  shows,  that 
he  is  detained  and  imprisoned  by  C.  D.,  sheriiTof  the  said 
county  of ,  without  any  authority  of  law,  for  a  sup- 
posed criminal  matter,  the  precise  nature  whereof  is  to  the 
petitioner  unknown.  And  the  petitioner  further  shows, 
that  he  has  demanded  of  the  said  C.  D.  a  copy  of  the  war- 
rant or  v.'arrants  for  the  commitment  of  the  petitioner,  but 
the  said  C.  D.  has  hitherto  refused,  and  still  refuses,  to  de- 
liver such  copy  to  the  petitioner ;  and  he  believes  that  the 
said  C.  D.  has  no  warrant  whatever  for  the  commitment  or 

{/)   I  Starr  &  Curtis'  An.  Stat.  1253;  Rev.  St.-it.  (1S77)  543. 
{S)  26  111.  532;  4  Parker  C.  K.  (N.  Y.)  9;  39  Miss.  627  ;  6  Clarke,  (Iowa) 
79.     See  6  Wis.  288 ;  93  111.  89. 
46 


720  HABEAS  CORPUS. 

Forms  of  petitions. 

detention  of  the  petitioner,  but  merely  detains  him  on  sus- 
picion that  he  may  be  guilt}^  of  some  criminal  offense. 

The  petitioner  therefore  prays  a  writ  o{  habeas  cor^tis  in 
this  behalf,  to  be  directed  to  the  said  C.  D.,  and  returnable 
forthwith,  according  to  the  form  of  the  statute  in  such  case 
made  and  provided. 

A.  B. 

State  of  Illinois,  > 

County  of ,      5  set.     A.  B.,  the    petitioner   in   the 

foregoing  petition  named,  makes  oath  and  says,  that  the 
matters  and  things  in  the  said  petition  contained  are  truj, 
to  the  best  of  his  knowledge,  information  and  belief. 

A.  B. 

Subscribed  and  sworn,  etc. 

A  verification  of  the  petition  by  affidavit,  though  usual, 
would  seem  not  to  be  required  by  the  statute,  where  the  de- 
tention is  for  any  criminal  or  supposed  criminal  matter. 
But  if  a  copy  of  the  warrant  has  been  refused,  that  fact 
must  be  shown  by  affidavit.  (Ji) 

No.   318.      Petition  for  a   habeas  corpus,   where  ■peti- 
tioner is  detained  under  a  warrant  of  commitment. 

(Address,  as  in  last  -precedent.^  The  petitioner,  A.  B., 
of,  etc.,  complaining  shows,  that. he  is  detained  and  im- 
prisoned, in  the  jail  of  the  said  county  of ,  by  C.  D., 

sheriff'  and  jailer  of  the  said  county,  on  a  charge  of  larceny^ 
by  virtue  of  a  certain  warrant  for  the  commitment  of  the 
petitioner,  a  copy  whereof  is  hereto  annexed  ;  which  de- 
tention and  imprisonment  of  the  petitioner  are  unjust,  and 
contrary  to  law. 

And  the  petitioner  further  shows,  that  the  evidence  on 
which  his  said  commitment  was  based  was  in  substance  as 
follows,  that  is  to  say  :  (Here  give  the  substance  of  the  evi- 
dence. Any  other  matters,  or  grounds  of  discharge,  may 
be  likewise  set  forth.) 

To  be  relieved  from  which  said  detention  and  imprison- 
ment the  petitioner  now  applies,  praying  that  a  writ  of 
habeas  corpus,  to  be  directed  to  the  said  C.  D.,  may  issue 

[h)  See  Hurd  Hub.  Cor.  21S;  i  Starr  &  Curtis'  An.  Stat.  1253;  Rev,  Stat. 
(1877)  543. 


HABEAS  CORPUS.  721 

Forms  of  petitions. 

in  this  behalf,  pursuant  to  the  statute  in  such  case  made  and 
provided,  so  that  the  petitioner  may  be  forthwith  brought 
before  this  court,  {or  "your  honor,")  to  do,  submit  to  and 
receive  what  the  law  may  require. 

A.  B. 

{An  affidavit  may  he  added,  as  in  last  -precedent;  and 
annex  copy  of  warrant S) 

No.   319.     Petition  for  a  habeas  corpus,  by  a  parent 
for  a  child. 

{Address.,  as  in  No.  317,  ante.)      The  petitioner,  A.  B., 

of,  etc.,  complaining  shows,  that  E.  F.,  aged  years, 

the  daughter  of  the  petitioner,  is  restrained  of  her  liberty 
by  C.  D.,  of,  etc.  ;  and  that  the  said  E.  F.  is  not  detained 
for  any  criminal  or  supposed  criminal  matter.  And  the 
petitioner  further  shows,  that  {here  set  forth  the  facts  con- 
cerning the  detention,  and  xvherein  the  illegality  thereof 
consists,  etc.) 

The  petitioner  therefore  prays  a  writ  of  habeas  corpus, 
pursuant  to  the  statute  in  such  case  made  and  provided,  to 
be  directed  to  the  said  C.  D.,  commanding  him  to  bring 
the  said  E.  F.  forthwith  before  the  court  here,  {or  "  your 
honor,")  and  to  show  the  cause  of  her  detention,  etc. 

A.  B. 

{Add  affidavit,  as  in  No.  317,  ante.) 

No.   320.     Petition  for  a  habeas   corpus,   -where  peti- 
tioner is  held  under  a  capias  ad  respondendum. 

{Address,  as  in  No.  317,  ante.)  The  petitioner,  A.  B., 
of,  etc.,  complaining  shows,  that  he  is  unjustly  imprisoned 
and  restrained  of  his  liberty  by  C.  D.,  sheriff'  of  the  said 

county  of  ,  by  virtue  of  a  certain  writ  of  capias  ad 

respondcndtim,  issued  from  the Court  of  the  county 

aforesaid ;  a  copy  of  which  said  writ,  marked  Exhibit  A, 
is  annexed  to  and  made  a  part  of  this  petition.  And  your 
petitioner  further  shows,  that  his  said  imprisonment  and 
restraint  are  unlawful,  for  the  reason  that  the  affidavit  on 
which  the  said  writ  of  capias  issued  was  wholly  insufficient 
to  authorize  the  issuing  of  such  writ ;  as  will  fully  appear 


72^  HABEAS  CORPUS. 

Forms  of  petitions. 

by  a  copy  of  the  said  affidavit,  marked  Exhibit  B,  annexed 
to  and  made  a  part  of  this  petition. 

Wherefore  the  petitioner  prays  a  writ  of  habeas  corona 
in  this  behalf,  to  be  directed  to  the  said  C.  D.,  and  return- 
able forthwith,  according  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

A.  B. 

{Add  affidavits,  as  in  No.  317,  ante.) 

By  the  "act  concerning  bail  in  civil  cases,"  (1S72,)  It  is 
provided,  that  "the  court  in  term-time,  or  the  judge  in 
vacation,  may,  on  application,  discharge  the  defendant 
from  arrest,  for  insufficiency  of  the  affidavit,  or  because  the 
facts  stated  therein  are  not  iriie^  or  other  good  cause 
which  would  entitle  him  to  be  discharged  upon  habeas 
cor;pus;  or  in  case  he  has  given  bail  may  discharge  the 
same,  or  reduce  the  amount  thereof,  upon  good  cause 
shown."  (/) 

lio.  321.     Petition  for  a  habeas  corpus  ad  testifican- 
dum. 

{Address,  as  in  No.  317,  ante.)  The  petitioner,  A.  B., 
respectfully  shows,  that  he  is  the  party  defendant  in  a  cer- 
tain cause  now  pending  in  the  said  court,  {or  "  in  the 

Court  of  the  county  of ,")  to  wit,  a  certain  action  of 

,  wherein  one  C.  D.  is  plaintiff;  that  the  said  cause  is 

set  lor  trial  in  the  said  court  on  {or  "will  probably  come 

on  for  trial  in  the  said  court  on  or  about")  the day  of, 

etc.  ;  that  one  E.  F.  is  a  material  witness  for  the  petitioner, 
in  the  said  cause  ;  and  that  the  said  E.  F.  is  now  a  prisoner 

in  the  custody  of  G.  H.,  sheriff  of  the  said  county  of , 

and  therefore  the  petitioner  will  be  unable  to  produce  the 
said  E.  F.  as  a  witness,  on  the  trial  of  the  said  cause  by 
ordinary  process  of  law. 

Wherefore  the  petitioner  prays  a  writ  of  habeas  corfus 
ad  testificandum,  according  to  the  form  of  the  statute  in 
such  case  made  and  provided,  to  be  directed  to  the  said 
G.  H.,  and  commanding  him  that  he  have  the  said  E.  F. 

(z)  I  Starr  &  Curtis'  An.  Stat.  360;  Rev.  Stat.  (1877;  169;   I  Scam,  556, 


HABEAS   CORPUS.  72,1 

Allowing  and  issuing  of  the  writ — Master's  order. 

before  the  said  court,  at,  etc.,  on,  etc.,  to  testify  on  behalf 
of  the  petitioner,  etc. 

A.   B. 

(An  affidavit  may  he  added,  as  in  No.  3i7>  ante.) 

The  statute  also  provides  for  a  habeas  corf)us  for  the  pur- 
pose of  bringing  in  a  prisoner  to  be  surrendered  in  dis- 
charge of  bail ;  and  also  for  the  purpose  of  discharging  a 
person  committed  for  a  contempt  in  not  performing  an  order 
or  decree  for  the  payment  of  money,  where  such  person  is 
unable  to  comply  with  the  order  or  decree,  or  is  unable  to 
endure  the  confinement.  {J) 

Allowing  and  issuing  of  the  ivrit. — If  issued  by  the 
court,  the  writ  is  to  be  under  the  seal  of  the  court ;  if  by  a 
judge,  under  his  hand,  {k)  Where  the  writ  is  allowed  by 
a  master,  his  order,  to  be  indorsed  on  the  application,  may 
be  as  follows  : 

Master^  s  order  for  a  habeas  corpus,  in  absence  of  judge. 

In  the  absence  of  the  Honorable  J.  K.,  judge  of  this  judi- 
cial circuit,  from  this  county  [and  circuit],  I  do  hereby 
order  that  a  habeas  corpus  issue  on  the  within  application, 
returnable  forthwith  into  the  Circuit  Court  of  the  county  of 

{or  "before  the  said  judge,  at,  etc.,"  or,  if  the  jtidge 

is  absent  from  the  circiiit,  "before  the  Honorable  L.  INI., 

fudge  of  the judicial  circuit,  at,  etc.") 

[Date.) 

O.  P.,  Master  in  Chancery 

for  the  county  of . 

To  R.  S.,  Clerk,  etc. 

On  filing  the  application,  so  indorsed,  with  the  clerk  of 
the  court  whereof  the  person  allowing  the  writ  is  master, 
such  clerk  will  immediately  issue  the  writ.  {!■) 

(/)   I  Starr  &  Curtis'    An.   Stat.   1260;  Rev.    Stat.  (1877)  548. 
{k)  I  Starr  &  Curtis'  An    Stat.  1254;     Rev.  Stat.  (1^77)  544. 
(/)  See  3  Scam.  19. 


724  HABEAS  CORPUS. 

General  form  Writ  of  habeas  corpus — Indorsement — Service — Expenses,  etc. 

No.  322.     General  form  of  a  writ  of  habeas  corpus. 

The  People  of  the  State  of  Illinois: 

To  the   sheriff  of  county,   (or  to  A.  B.,  as  the   case 

may  be). 

You  are  hereby  commanded  to  have  the  body  of  C.  D.,  by 
you  imprisoned  and  detained,  as  it  is  said,  together  with  the 
time  and  cause  of  imprisonment  and  detention,   by  whatever 

name   said  C.  D.  shall   be   called   or  charged,  before  

Court  of county  (or  before  E.  P.,  Judge  of,  etc.).  at,  etc., 

immediately  after  being  served  with  this  writ,  to  be  dealt  with 
according  to  law;  and  have  you  then  and  there  this  writ, 
with  a  return  thereon  of  your  doings  in  the  premises." 

Indorsement. — To  the  intent  that  no  officer,  or  other  person 
to  whom  such  writ  is  directed,  may  pretend  ignorance  there- 
of, every  such  writ  shall  be  indorsed  with  these  words ; 
"  By  the  Habeas  Corpus  Act." 

"  Service  of  writ. — The  habeas  corpus  may  be  served  by  the 
sheriff,  coroner,  or  any  constable  or  other  person  appointed 
for  that  purpose  by  the  court  or  judge  by  whom  it  is  issued 
or  allowed.  If  served  by  a  person  not  an  officer,  he  shall 
have  the  same  power,  and  be  liable  to  the  same  penalty  for 
non-performance  of  his  duty  as  though  he  were  sheriff 

"  Service  shall  be  made  by  leaving  a  copy  of  the  original 
writ  with  the  person  to  whom  it  is  directed,  or  with  any  of 
his  under  officers  who  may  be  at  the  place  where  the  prisoner 
is  detained  ;  or  if  he  cannot  be  found,  or  has  not  the  person 
imprisoned  or  restrained  in  custody,  the  service  may  be  made 
upon  any  person  who  has  him  in  custody,  with  the  same 
effect  as  though  he  had  been  made  a  defendant  therein." 

Expenses,  etc. — "  When  the  person  confined  or  restrained  is 
in  the  custody  of  a  civil  officer,  the  court  or  judge  granting 
the  writ  shall  certify  thereon  the  sum  to  be  paid  for  the  ex- 
pense of  bringing  him  from  the  place  of  imprisonment,  not 
exceeding  ten    cents   per  mile,  and  the   officer  shall   not  be 


HABEAS  CORPUS.  725 

Relurn  of  writ. 

bound  to  obey  it  unless  the  sum  so  certified  is  paid  or  ten- 
dered to  him,  and  security  is  given  to  pay  the  charges  of  car- 
rying him  back,  if  he  should  be  remanded :  Provided,  that  if 
such  court  or  judge  shall  be  satisfied  that  the  person  so  con- 
fined or  restrained  is  a  poor  person,  and  unable  to  pay  such 
exjpenses,  then  the  court  or  judge  shall  so  certify  on  such 
writ,  and  in  such  case  no  tender  or  payment  of  expenses 
need  be  made  or  security  given  as  aforesaid,  but  the  officer 
shall  be  bound  to  obey  such  writ. 

Return  of  writ. — "  The  officer  or  person  upon  whom  such 
writ  is  served,  shall  state  in  his  return,  plainly  and  unequivo- 
cally : 

1.  Whether  he  has  or  has  not  the  party  in  his  custody  or 
control,  or  under  his  restraint,  and  if  he  has  not,  whether  he 
has  had  the  party  in  his  custody  or  control  or  under  his 
restraint  at  any  and  what  time  prior  or  subsequent  to  the  date 
of  the  writ. 

2.  If  he  has  the  party  in  his  custody  or  control,  or  under 
his  restraint,  the  authority  and  true  cause  of  such  imprison- 
ment or  restraint,  setting  forth  the  same  at  large. 

3.  If  the  party  is  detained  by  virtue  of  any  writ,  warrant 
or  other  written  authority,  a  copy  thereof  shall  be  annexed 
to  the  return,  and  the  original  shall  be  produced  and  exhibi- 
ted on  the  return  of  the  writ  to  the  court  or  judge  before 
whom  the  same  is  returnable. 

4.  If  the  person  upon  whom  the  writ  is  served  has  had  the 
party  in  his  custody  or  control,  or  under  his  restraint,  at  any 
time  prior  or  subsequent  to  the  date  of  the  writ,  but  has  trans- 
ferred such  custody  or  restraint  to  another,  the  return  shall 
state  particularly  to  whom,  at  what  time,  for  what  cause  and 
by  what  authority  such  transfer  took  place.  The  return  shall 
be  signed  by  the  person  making  the  same,  and  except  where 
such  person  is  a  sworn  public  officer  and  makes  the  return  in 
his  official  capacity,  it  shall  be  verified  by  oath."  (/«) 

{m)  I  Starr  &  Curtis'  An.  Sta\   1255;  Rev.  Stnt.  {\^^^)  546;  96  111.  6S. 


726  HABEAS  CORPUS. 

Forms  of  returns. — Examination. 


>IS,  1 


No.  323.  RcHnn  to  a  writ  of  Habeas  Corpus,  where  the 
prisoner  is  in  custody. 

State  of  Illinoi 

County  of- 

I,  F.  H.,  SJieriff  of  said  county ,  to  n'hom  the  within  writ  is 
directed,  for  return  thereto,  say  that  I  have  the  within  named 
C.  D.  in  my  custody,  and  now  bri^g  his  body  in  court  here 
as  commanded  ;  that  the  cause  of  his  option  and  detention  is, 
etc.,  {Jiere  set  forth  the  cause  of  the  detention  at  large,  and  if  in 
custody  by  virtue  of  process ^  attach  a  copy.) 

[Date.)  F.  H.,  Sheriff  of,  etc. 

No.  3  24.  Return  to  a  Habeas  Corpus  denying  detention^  etc. 
State  of  Illinois, 


County  of- 

I  have  not  now,  and  have  not  had  at  any  time  prior  or  subse- 
quent to  the  date  of  the  within  writ,  the  custody  or  control  of 
the  within  named  C.  D.,  wherefore  I  cannot  hav  his  body 
Defore  the  court  (or  "  judge  "]  as  I  am  therein  commanded. 

{Date)  F.  H.,  Sheriff  of,  etc. 

No.  325.     Return  to  a  Habfas  Corpus  by  a  party  not  an 

officer. 

State  of  Illinois,  1 

County  of / 

I,  F.  K.,  to  whom  the  within  writ  is  directed,  have  now  be- 
fore the  court  here  the  body  of  C.  D.,  therein  named,  as 
thereby  commanded.  And  for  cause  of  his  detention  I  aver 
that,  etc.,  (here  setfortli  the  grcund  of  detention  at  large.) 

{Date)  F.  K. 

Add  affidavit  as  follows  : 
State  of  Illinois,! 

County  of ■  /     * 

F.  K.  makes  oath  and  says  that  the  above  return  by  him 
made  is  true  to  the  best  of  his  knowledge,  information  and 
belief. 

Subscribed,  etc.  F.  K. 

Examination. — "  Upon  the  return  of  a  writ  o'i  habeas  corpus., 
the  court  or  judge  shall,  without  delay,  proceed  to  examine  the 


HABEAS  CORPUS.  72^ 

Denial  of  return,  etc. 

cause  of  tlie  imprisonment  or  restraint,  but  the  examination 
may  be  adjourned  from  time  to  time,  as  circumstances  re- 
quire." 

Denial  of  retJirn,  etc. — "  The  party  imprisoned  or  restrained 
may  deny  any  of  the  material  facts  set  forth  in  the  return,  and 
may  allege  any  other  fact  that  may  be  material  in  the  case, 
which  denial  or  allegation  shall  be  on  oath ;  and  the  court  or 
judge  shall  proceed  in  a  summary  way  to  examine  the  cause 
of  the  imprisonment  or  restraint,  hear  the  evidence  produced 
by  any  person  interested  or  authorized  to  appear,  both  in  sup- 
port of  such  imprisonment  or  restraint  and  against  it,  and 
thereupon  shall  dispose  of  the  party  as  the  case  may  require. 

"  The  return,  as  well  as  any  denial  or  allegation,  may  be 
amended  at  any  time  by  leave  of  the  court  or  judge."  (r) 

If  it  appears  that  the  prisoner  is  in  custody  by  virtue  of 
process  from  any  court,  legally  constituted,  he  can  be  dis- 
charged only  for  some  of  the  following  causes :  ist. 
Where  the  court  has  exceeded  the  limits  of  its  jurisdiction, 
either  as  to  the  matter,  place,  sum  or  person.  2d.  Where, 
though  the  original  imprisonment  was  lawful,  yet  by  some 
act,  omission  or  event,  which  has  subsequently  taken  place, 
the  party  has  become  entitled  to  his  discharge.  3d.  Where 
the  process  is  defective  in  some  substantial  form  required 
by  law.  4th.  Where  the  process  though  in  proper  form, 
has  been  issued  in  a  case,  or  under  circumstances,  where 
the  law  does  not  allow  process,  or  orders  for  imprisoninent 
or  arrest  to  issue.  5th.  Where,  although  in  proper  form, 
the  process  has  been  issued  or  executed  by  a  person  either 
unauthorized  to  issue  or  execute  the  same,  or  where  the 
person  having  the  custody  of  the  prisoner  under  such  pro- 

(r)  I  Starr  &  Cunis'  An.  Stat.  1256;  Rev.  Stat.  (1S77)  54j-S4S. 


728  HABEAS  CORPUS. 

The  hearing,  etc. 

cess  is  not  the  person  empowered  by  law  to  detain  liim. 
6th.  Wliere  the  process  appears  to  have  been  obtained  by 
false  pretense  or  bribery.  7th.  Where  there  is  no  general 
law,  nor  any  judgment,  order  or  decree  of  a  court,  to 
authorize  the  process,  if  in  a  civil  suit,  nor  any  conviction, 
if  in  a  criminal  proceeding.  "No  court,  or  judge,  on  the 
return  of  a  habeas  corpus^  shall,  in  any  other  matter,  in- 
quire into  the  legality  or  justice  of  a  judgment  or  decree  of 
a  court  legally  constituted.  In  all  cases  where  the  impris- 
onment is  for  a  criminal  or  supposed  criminal  matter,  if  it 
shall  appear  to  the  said  court,  or  judge,  that  there  is  suffi- 
cient legal  cause  for  the  commitment  of  the  prisoner,  al- 
though such  commitment  may  have  been  informally  made, 
or  without  due  authority,  or  the  process  may  have  been  ex- 
ecuted by  a  person  not  duly  authorized,  the  court,  or  judge, 
shall  make  a  new  commitment,  in  proper  form,  and  di- 
rected to  the  proper  officer,  or  admit  the  party  to  baii,  d 
the  case  be  bailable."  {t) 

Where  the  affidavit  for  a  capias  ad  satisfaciendum^  in  a 
civil  action,  conforms  to  all  the  requirements  of  the  consti- 
tution and  statute,  the  court  will  not  go  behind  the  capias 
and  affidavit,  and  inquire  into  the  facts  charged  in  the 
latter.  {iC)  And  the  court  has  no  power,  on  habeas  corpus^ 
to  discharge  a  person  who  is  imprisoned  under  a  capias  ad 
satis/acicndum,  upon  the  mere  ground  that  he  was  not  sued 
by  his  right  name,  {v) 

In  the  cases  of  wives,  children  and  wards,  all  the  court 
does  is  to  see  that  they  are  under  no  illegal  restraint,  (iv) 
The  object  in  such  cases  is  not  to  enforce  the  right  of  cus- 
tody, but  to  remove  unlawful  restraint.  The  person  inter- 
ested in  the  custody  will  be  presumed  to  represent  the 
wishes  of  the  person  restrained,  so  far  as  to  enable  him  to 

[t)  I  Starr  &  Curtis'  An.  Stat.  1257;  Rev,  Stat.  (1S77)  545  ;   104  111.  156. 
(m)  16  111.  350.     See  32  111.  446;  117  111.  63. 
{v)  32  111.  446. 

{w)  I  Strange,  445  ;   2  Strange,  982 ;    Wilmot's    Op.    120;  4  Johns.   Ch.    K. 
.80  ;  19  Bradvv.  332  ;    103  111.  367. 


HABEAS   CORPUS.  729 

Forms  of  orders. 

set  the  remedial  power  of  the  court  in  motion.  But  the 
right,  properly  speaking,  extends  no  further  than  that,  (x) 

In  the  case  of  infants,  an  unauthorized  absence  from  the 
legal  custod}'^  has  been  treated,  at  least  for  the  purpose  of 
allowing  a  writ  of  habeas  corpus  to  issue,  as  equivalent  tc 
imprisonment ;  and  the  duty  of  returning  to  such  custody  as 
equivalent  to  a  wish  to  be  free.  And  for  all  legal  purposes 
a  child  is  in  the  custody  of  those  with  whom  it  lives,  (jy) 

A  father  may  obtain  the  custody  of  his  children,  by  the 
writ  of  habeas  cor^pus,  where  they  are  improperly  detained 
from  him ;  but  the  courts,  both  of  law  and  equity,  will  in- 
vestigate the  circumstances,  and,  according  to  sound  dis- 
cretion, do  with  the  child  as  its  interests  may  require. 
Although,  in  general,  parents  are  intrusted  with  the  cus' 
tody  of  the  persons,  and  with  the  education,  of  their  chil' 
dren,  3^et  this  is  done  upon  the  natural  presumption  that  the 
children  will  be  properly  taken  care  of,  and  will  be  brought 
up  with  a  due  education  in  literature  and  morals,  and  that 
they  will  be  treated  with  kindness  and  affection  ;  but  when- 
ever this  presumption  is  removed,  whenever,  for  example, 
it  is  found  that  a  father  is  guilty  of  gross  ill-treatment  or 
cruelty  towards  his  child,  or  that  he  is  in  constant  habits 
of  drunkenness  and  blasphemy,  or  low  and  gross  debauch- 
ery, or  that  his  domestic  associations  are  such  as  tend  to 
the  corruption  and  contamination  of  his  children ;  in  every 
such  case  the  court  will  interfere,  and  deprive  him  of  the 
custody  of  his  children,  [z) 


JVo.  326.      yudgc^s  order  of  discharge^  in  vacaiioti. 

In  the  matter  of  the  application  of  ) 

A.  B.  for  a  writ  of  habeas,  corpus.  5    Be  it  remembered, 
that  on  this day  of,  etc.,  in  obedience  to  the  writ  of 

(*)  Hurd  on  Hab.  Corp.  450;  4  Johns.  Ch.  R.  So;  8  Paige  Ch.  R.  47. 
iy)  25  Wend.  64;  S  Paige  Ch.  R.  47. 

(«)  2  Kent,  194;  Story's  Eq.  Juris.,  sec.  1345;  Ambler,  302;   2  Hill,  363 
Bligh,  (N.  S.)  126;  8  Paige  Ch.  R.  47;  4  Johns.  Ch.  R.  80. 


HABEAS   CORPUS. 


Forms  of  orders. 


habeas  corpus  heretofore  allowed  by  me  in  this  behalf, 
C.  D.,  skeriff^  etc.,  to  whom  the  said  writ  was  directed,  ap- 
peared before  me,  at,  etc.,  having  with  him  the  body  of  the 
said  A.  B.,  together  with  the  said  writ  and  the  return  of 
him  the  said  C.  D.  thereon.  And  thereupon,  the  allega- 
tions and  proofs  of  the  respective  parties  in  this  matter 
having  been  heard,  and  fully  understood,  (*)  and  it  appear- 
ing that  the  said  A.  B.,  at  the  time  of  the  issuing  and  serving 
of  the  said  writ,  was  unlawfully  detained  by  the  said  C.  D., 
and  ought  not  to  be  remanded  to  his  custody :  I  do  there- 
fore order,  that  the  said  A.  B.  be  forthwith  discharged  and 
set  at  liberty,  and  go  hence  without  day,  etc. 

J.  K.,  Judge. 

JVo.  327.     yudge's  order i  in  vacation,  rematiding  pris- 

ofier. 

{As  in  the  last  -precedent,  to  the  asterisk,  and  thence  as 
folloivs:)  and  it  appearing  that  the  said  A.  B.,  at  the  time 
of  the  issuing  and  serving  of  the  said  writ,  was  lawfully  de- 
tained by  the  said  C.  D.,  for  the  cause  set  forth  in  the  said 
return  ;  and  it  further  appearing  that  the  said  A.  B.  ought 
not  to  be  discharged,  but  ought  to  be  remanded  to  the  cus- 
tody of  the  said  C  D.,  for  the  reason  that  [the  said 
A.  B.  is  probably  guilty  of  feloniously  stealing,  taking  and 
carrying  away,  on,  etc.,  in,  etc.,  one  -watch,  of  the  value 
of dollars,  the  property  of  one  G.  H.]  :  I  do  there- 
fore order,  that  the  said  A.  B.  be  remanded  to  the  custody 
of  the  said  C.  D.,  sheriff  as  aforesaid  {if  admitted  to  bail, 
add,)  unless  bail  be  given  by  the  said  A.  B.  in  the  sum 

of  dollars,   at  which  sum  the  bail  in  this  behalf  is 

fixed. 

J.  K.,  Judge. 

No.  328.      Order  of  discharge,  by  the  court,  in  term. 

{Title  of  cause,  as  in  No.  326,  ante.)  And  now  on  this 
day  here  comes  the  said  C.  D.,  sheriff,  etc.,  to  whom  the 
said  writ  of  habeas  corpus  in  this  behalf  was  directed,  and 
has  now  here  in  court  the  body  of  the  said  A.  B.,  together 
with  the  said  writ  and  the  -return  of  him  the  said  C.  D. 
thereon.     And  thereupon,  the  allegations  and  proofs  of  the 


HABEAS  CORPUS.  731 

Forms  of  orders. 

respective  parties  in  this  matter  being  heard  and  exam 
ined,  and  the  court  being  fully  advised  in  the  premises  ;  (*) 
and  it  appearing  to  the  court  that  the  said  A.  B.,  at  the 
time  of  the  issuing  and  serving  of  the  said  writ,  was  unlaw- 
fully detained  by  the  said  C.  D.,  and  ought  not  to  be  re- 
manded to  his  custody  :  It  is  therefore  ordered  by  the  court 
that  the  said  A.  B.  be  forthwith  discharged  and  set  at  lib- 
erty, and  go  hence  without  day,  etc. 


JYo.  329.       Order   of  court,    in    term^  remanding  pris- 
oner, etc. 

{As  in  the  last  -precedent,  to  the  asterisk,  and  thence  as 
folloivs :)  and  it  appearing  to  the  court  that  the  said  A.  B., 
at  the  time  of  the  issuing  and  serving  of  the  said  writ,  was 
lawfully  detained  by  the  said  C.  D.,  for  the  cause  in  the  said 
return  mentioned ;  and  it  further  appearing  to  the  court 
that  the  said  A.  B.  ought  not  to  be  discharged,  but  ought 
to  be  remanded  to  the  custody  of  the  said  C.  D.,  for  the 
reason  that  {Jiei'e  set  forth  the  cause  or  causes  for  re- 
manding the  -prisoner^ :  It  is  therefore  ordered  by  the  court, 
that  the  said  A.  B.  be  remanded  to  the  custody  of  the  said 
C.  D.,  sheriff  as  aforesaid  {if  admitted  to  bail,  add,)  un- 
less bail  be  given  by  the  said  A.  B.  in  the  sum  of dol- 
lars, at  which  sum  the  bail  in  this  behalf  is  fixed.  (//" 
bail  is  thereupon  given,  proceed:)  And  thereupon  the  said 
A.  B.,  as  principal,  and  O.  P.,  as  surety,  in  open  court 
jointly  and  severally  acknowledge  themselves  to  be  in- 
debted to  the  People,  etc.,  etc. 

It  might  be  profitable  to  consider  the  subject  of  habeas 
corpus  more  at  length  and  in  detail,  but  it  would  be  foreign 
to  the  plan  and  purpose  of  the  work.  The  subject  is  very 
fully  and  learnedly  treated  in  the  valuable  work  of  Rollin 
C.  Hurd,  Esq.,  usually  cited  as  Hard  on  Habeas  Corpus 


73^  ATTORNEYS  AND  COUNSELORS  AT  LAW. 


Attorneys  and  counselors  at  law — How  admitted. 


CHAPTER  XIX. 


ATTORNEYS    AND    COUNSELORS    AT   LAW.- 

An  attorney  at  law  is  an  officer  of  a  court  of  justice,  who 
is  employed  by  a  party  in  a  cause  to  manage  the  same  for 
liim.  Appearance  by  an  attorney  has  been  allowed  in 
England  from  the  time  of  the  earliest  records  of  the  courts 
of  that  country.  They  are  mentioned  in  Glanville,  Brac- 
ton,  Fleta  and  Britton ;  and  a  case  turning  upon  a  party's 
right  to  appear  by  attorney  is  reported  in  the  Year  Book, 
17  Edw.  Ill,  A.  D.  1344.  {^) 

^  It  results  from  the  nature  of  their  functions,  and  of  their 
duties,  as  well  to  the  court  as  to  the  client,  that  no  one  can, 
even  by  consent,  be  the  attorney  of  both  the  litigating 
parties,  in  the  same  controversy,  {b) 

The  name  of  attorney  is  given  to  those  officers  who  prac- 
tice in  courts  of  common  law  ;  solicitors  in  courts  of  equity  ; 
and  proctors  in  courts  of  admiralty,  and  in  the  English 
ecclesiastical  courts,  (c) 

How  admitted. — The  question  as  to  who  may  be  admitted 
as  an  attorney,  is  to  be  determined  by  the  rules  and  regula- 
tions established  on  the  subject  in  the  several  states.  Every 
state  in  the  Union  has  laws  by  which  the  right  to  practice  in 
its  courts  may  be  granted,  and  the  right  is  very  generally 
made  to  depend  upon  good  moral  character,  the  learning, 
and  professional  skill  of  the  party  on  whom  the  privilege  is 
conferred.     The  right  to  admission  in  no  sense  depends  upon 

(a)  I  Bouv.  L,  D.  140. 

(6)  Farresly,  47.  See  Bac.  Abr.  tit.  Attorneys,  c ;  7  Mod.  47;  15  Cal.  387; 
16  Ind.  392;  15  Barb.  650;   18  Ind.  137. 

{c)  I  Bouv.  L.  D.  140;  3  Dall.  (U.  S.)  410;  4  Id.  ZIZ- 


ATTORNEYS  AND  COUNSELORS  AT  LAW.     733 

Qualifications. 

citizenship  of  the  United  States,  {d)  But  a  citizen  of  one 
state  is  not  entitled,  as  a  matter  of  right,  to  admisbion  to  the 
bar  of  another  state.   (/) 

Qualifications. — Attorneys  are  officers  of  the  court,  admitted 
as  such  by  its  order  upon  evidence  of  their  possessing  suf- 
ficient legal  learning  and  fair  private  character.  It  is  the 
general  practice  in  this  country  to  obtain  this  evidence  by  a 
personal  examination  of  the  parties  making  application  for 
admission.  And  where  the  law  provides  for  an  examination 
of  applicants  for  admission  to  the  bar,  before  their  admission, 
a  candidate  ought  not  to  be  admitted  without  attending  in 
person  at  the  time  of  the  hearing,  even  when  physically  dis- 
abled at  the  time  from  coming.   (/) 

In  regard  to  the  inquiry  as  to  the  moral  character  of  an 
applicant  for  admission,  the  court  is  not  limited  to  the  certifi- 
cate, but  may  look  behind  it,  and  is  bound  to  do  so  in  cases 
attended  with  suspicious  circumstances,   {g) 

Rule  2  of  the  Supreme  Court  of  the  United  States  provides, 
that 

"  It  shall  be  requisite  to  the  admission  of  attorneys  or 
counselors,  to  practice  in  this  court,  that  they  shall  have 
been  such  for  three  years  past  in  the  Supreme  Courts  of  the 
states  to  which  they  respectively  belong,  and  that  their  pri- 
vate and  professional  character  shall  appear  to  be  tair." 

In  this  state  a  candidate  for  examination  must  have  pur- 
sued a  regular  course  of  law  study  in  the  office  of  some  lawyer 
in  general  practice  for  at  least  two  years.  If  such  applicant 
shall  have  been  in  attendance  in  a  law  school  as  a  student  at 
law,  the  time  thus  spent  may  be  considered  as  a  part  of  the 
two  years.  If  the  applicant  presents  a  diploma  regularly 
issued  by  any  law  school,  regularly  organized  under  the  laws 
of  this  state,  whose  regular  course  of  law  studies  is  two  years, 

(</)  16  Wall.  (U.S.)  130. 

{e)  40  N.  Y.  560. 

(/)  44  Cal.  553;  I  Wait's    Ac.  &  Def.  432. 

{g)  21  N.  J.  Law  (I  Zab.)  345;  22  N.  Y.  67;    i  Mo   605, 


7.H      ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Authority  of  attorneys,  etc. 

and  requiring  an  actual  attendance  by  the  student  of  at  least 
thirty-six  weeks  in  each  of  said  years,  he  may  be  admitted 
upon  such  diploma  without  examination. 

As  to  licensing  attorneys  and  penalties  for  misconduct,  see 
Puterbaugh's  Ch.  PI.  &  Pr. 

Authority  of  attorneys,  etc. — The  mere  appearance  of  an 
attorney  is  generally  deemed  sufficient  for  the  opposite  party, 
and  for  the  court,  who  will  look  no  further,  and  will  proceed 
as  if  he  had  sufficient  authority,  and  leave  any  party  who  may 
be  injured  to  his  action  against  the  attorney,  unless  there 
appears  to  be  fraud  or  collusion  in  the  case.  {Ji)  The  public 
office  which  he  bears,  the  oath  under  which  he  acts,  and,  it 
may  be  added,  the  experience  of  the  general  integrity  and 
fidelity  of  the  profession,  have  operated  to  establish  a  usage, 
and  make  that  usage  law,  that  except  in  extreme  cases,  the 
appearance  of  an  attorney  for  a  party  will  in  general  bind 
him.  {i)  The  case  is  strongly  analogous  to  that  of  sheriffs 
and  other  returning  officers.  Their  returns  are  taken  to  be 
true,  and  are  not  permitted  to  be  contradicted  ;  and  if  false, 
the  remedy  is  by  an  action  against  them.  Kent,  C.  J.,  says, 
that  "by  licensing  attorneys,  the  courts  recommend  them  to 
the  public  confidence;  and  if  the  opposite  attorney,  in  the 
business  of  a  suit,  must  always,  at  his  peril,  look  beyond  the 
attorney  to  his  authority,  it  would  be  productive  of  great 
public  inconvenience."  (7) 

An  attorney  at  law,  when  acting  in  good  faith,  and  his 
client  makes  no  objection  to  his  management  of  the  cause, 
has  the  power  to  waive  or  withdraw  a  defense  and  consent  to 
judgment,  but  not  to  fraudulently  sell  out  his  client's  inter- 
ests to  the  opposite  party;  and  the  courts  will  protect  suitors 
from  the  treachery  of  their  solicitors,  as  far  as  possible,  {jj) 

The  authority  of   an    attorney    to  appear   in    a    case    will 

{h)  6  Johns.  34.  296;  I  Salk,  86;  9  Wheat.  73S;  35  111.  544;  Breese,  331; 
23  Tex.  104;  12  Ark.  401;  22  Cal,  200. 

(/)  I  Mass.  433;  8  Mass.  113;  27  Mich.  244;  115  Mass.  36. 
{j)  6  Johns.  302;  21  Maine,  558;  31  Iowa,  53;  14  Bradw.  270. 
{jj)  III  111.  176. 


ATTORNEYS  AND  COUNSELORS  AT  LAW. 


/.o 


Authority  of  attori\c_ys,  etc. 


always  be  presumed,  until  the  contrary  appears;  (X')  but 
where  the  court  is  satisfied  that  an  attorney  has  commenced 
a  suit  in  the  name  of  another,  without  authority,  the  suit 
will  be  dismissed.  (/)  Whatever  ma}^  be  the  true  rule  in 
regard  to  the  question  as  to  what  extent,  for  what  purposes 
and  under  what  circumstances  a  party,  for  whom  an  ap- 
pearance to  a  suit  has  been  entered,  can  deny  the  authority 
of  the  attorney,  and  ask  relief  from  the  court,  the  claim  to 
do  so  is  viewed  with  great  disfavor  by  courts,  whenever 
innocent  third  parties  have  acquired  rights  under  the  judg- 
ment or  decree,  (in) 

If  it  is  desired  to  raise  the  question  of  tlie  authority  of  an 
attorney  to  appear  and  plead  for  such  parties  as  he  claims 
to  represent,  it  may  be  done  by  affidavit ;  and  the  court 
will  hear  counter  affidavits  upon  the  question.  («)  The 
court  will  order  an  attorney  to  show  his  authority  to  sue, 
when  a  due  regard  to  the  rights  of  the  defendant  seems  to 
demand  it.  {o)  But  the  reasons  must  be  strong.  If  a 
respectable  and  responsible  attorne\^  appears  for  a  party, 
the  court  will  not  ordinarily  inquire  into  the  fact  whether 
he  was  actually  authorized  to  appear  or  not.  {p) 

The  rule  that  the  authority  of  an  attorney  will  be  presumed, 
and  his  acts  binding  on  the  person  for  whom  he  appears,  has 
not  been  applied  to  acts  and  transactions  out  of  court,  {q) 

An  attorney  who  is  employed  to  defend  a  suit,  is  not 
authorized  to  confess  a  judgment  against  his  client,  with- 
out his  consent,  (r)  But  where  he  has  been  employed  in 
anticipation  of  a  suit,  he  may  waive  service  on  his  client,  {s) 

{k)  I  Scam.  291  ;  32  111.  304;  35  III.  536,  541  ;  43  111.  309;  l?  Cal.  431  ; 
22  Wis.  207.     See  117  111.  171. 

(/)   14  111.  132;  33  Geo.  243.     See  35  111.  544;  19  Braflw.  42. 

(m)  52  111.  382;  9  P  ige,  498;  6  Johns.  300. 

(«)  35  111-  536.     See  43  111.  309;  35  Cal.  534;  22  Wis.  207. 

{0)  4  Duer  (N.  Y.),  632;  14  III.  132;  36  Barb.  266;   li    Iowa,  457. 

(/)  5  Duer  (N.  Y.),  643;   13  Bradw.   648. 

{q)  I  Mass.  433;  8  Mass.  113;  5  Hurl.  &  Nor.  S90;  S6  111.  547. 

(r)  I  Scam.  124. 

[s)  7  Cla:ke.  (lov.a),  3:10. 

47 


U^  ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Authority  of  attorneys,  etc. 

In  an  action  upon  a  record  of  a  foreign  judgment,  which 
shows  that  there  was  no  service  of  process,  but  that  the 
appearance  of  the  defendant  was  entered  by  an  attorney,  it 
may  be  shown  that  the  attorney  who  entered  the  appear- 
ance did  so  without  authority,  and  thereby  a  recovery  upon 
the  judgment  may  be  defeated,  {t) 

An  attorney  employed  to  collect  a  debt  can  only  obtain 
judgment,  have  execution  issued,  and  receive  and  receipt 
for  the  proceeds.  He  can  not  compromise  the  debt,  give 
day  of  payment,  or  receive  a  less  amount,  or  anything  but 
money,  in  satisfaction.  (//)  He  has  no  power  to  sell  his 
client's  judgment ;  and  an  attempted  sale  will  only  bind  the 
client  when  the  act  is  ratified  or  adopted  by  the  receipt  of 
money,  or  otherwise,  (v)  Nor  has  an  attorney  a  right  to 
give  up  securities  of  his  client,  without  actual  payment,  or 
special  authority,  {w) 

In  ordinary  cases,  where  an  attorney  is  employed  to  take 
the  care  and  management  of  a  suit,  he  has  a  right  to  con- 
sider his  employment  as  continuing  to  the  end  of  the  litiga- 
tion in  that  court,  unless  discharged  by  his  client,  {x)  But 
the  power  of  an  attorney  ceases  upon  the  termination  of  the 
relation,  after  which,  any  and  all  acts  of  an  attorney, 
whether  in  the  matter  of  receiving  the  benefits  of  a  judg- 
ment or  decree,  or  releasing  errors  of  record,  or  otherwise, 
are  unwarranted,  and  do  not  bind  the  client.  { y)  The 
mere  employment  of  an  attorney  to  attend  to  a  cause  in  an 
inferior  court,  does  not  authorize  his  appearance  in  the 
same  cause  on  appeal  to  a  higher  tribunal,  {z) 

(0  15  111.  415.    See  4  Scam.  536;  3  Gilm.  197;  15  111.  293. 

{ic)   16  111.  272;  34  Penn.  315;   28  Mo.  366;  13  Bradw.  648;  I17    111.  67;    19 
Bradvv.  503.     See  27  111.  149;  24  Geo.  252;  2  Allen,  247;  41  Ala.  103;    44  HI. 

183;  73  111-  415- 

[v)   58  Penn,  St.  R.  196;  61  111.  311;  112  111.  572. 
[w)   2  Stockt.  (N.  J.)  21  ;  24  Geo.  252  ;  iii  111.  176. 
{x)   30  Vt.  285  ;  38  How.  (N.  Y.)  Pr.  121. 
{y)   44  111.  183.  See  40  111.  128;  14  Bradw.  270. 
{z)   24  111.  37. 


ATTORNEYS  AND  COUNSELORS  AT  LAW.  737 

Authority  can  not  be  delegated — Partners — Retainer — Agreements. 

Their  authority  can  not  he  delegated. — Tlie  authority  of 
an  attorney  is  personal,  and  can  not  be  delegated  to  an- 
other. («)  If  a  person  engages  the  services  of  an  associ- 
ation of  lawyers,  he  is  entitled  to  the  services  of  every  one 
of  them  ;  and  if  one  abandons  the  retainer  with  the  assent 
of  the  others,  express  or  implied,  or  they  attempt  to  supply 
his  place  with  another  attorney,  (though  of  equal  or  supe- 
rior qualifications,)  it  will  be  no  performance  of  the  con- 
tract. It  is  personal,  and  can  not  be  delegated  to,  or  per- 
formed by,  another,  iaa)  So  if  attorneys  who  are  partners 
accept  a  retainer,  the  contract  is  joint,  and  continues  to  the 
termination  of  the  suit ;  and  neither  can  be  released  from 
the  obligation  or  responsibility  assumed,  either  by  a  disso- 
lution of  their  partnership,  or  by  any  other  act  or  agree- 
ment between  themselves,  (b) 

Retainer^  etc. — It  requires  a  retainer,  or  fee  paid,  to 
constitute  the  relation  of  attorney  and  client ;  [c)  and  an 
attorney  can  not  recover  for  services  rendered  as  such,  un- 
less he  can  show  an  emplo}- ment  or  retainer,  {d)  It  is  not 
essential,  however,  to  the  right  of  recovery  for  professional 
services,  that  there  should  be  an  express  request ;  but  if 
the  services  were  rendered  under  such  circumstances  as 
will  reasonably  imply  that  they  were  performed  with  the 
assent  and  at  the  request  of  the  client,  a  recovery  therefor 
ma}'  be  had.  (<?) 

Agreements. — All  agreements  made  by  an  attorney  with 
the  opposite  party,  and  entered  of  record,  or  made  in  writ- 
ing and  filed  with  the  papers  in  the  cause,  and  binding  on 
his  client.     As  to  agreements  not  in  writing,  there  may  be 

(a)  Breese,  98. 

(art)  38  111.  65;  54  Barb.  425. 

{b)   16  111.  341;  31  III.  62;  2  Met.  (Ky.)  258;  87  111.  l8. 

(c)  26  111.  225;  54  Barb.  425;  3  Cal.  108. 

(rf)  26  111.  218. 

(e)  53  111.  120. 


•j^S   ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Admissions — Termination  of  employment. 

doubts  how  far  the  courts  will  enforce  them,  or  whether  the 
performance  must  not  be  left  to  the  honor  of  the  attorney. 
As  a  general  rule,  courts  refuse  to  enforce  agreements 
made  between  attorneys,  where  the  same  are  not  in  writing, 
or  entered  of  record.  {/)  They  are,  and  should  be,  dis- 
couraged. In  case  of  the  death  or  change  of  the  attorney 
who  made  them,  his  successor  and  the  client  wouIg  be  with- 
out means  of  knowing  them.  If  clearly  proved,  however, 
the  court  will  see  that  the  opposite  party  should  not  suffer, 
and  perhaps  performance  would  be  compelled ;  but  there 
is  so  much  danger  of  mistake  and  disagreement,  and  attor- 
neys so  frequently  differ  with  respect  to  them,  that  it  should 
be  invariably  required  that  all  important  agreements  should 
be  put  in  writing,  or  entered  of  record. 

Admissions. — Admissions  made  by  attorneys,  with  a 
view  to  their  being  used  as  evidence,  may  be  so  used ;  {g) 
but  casual  admissions  in  the  course  of  conversation,  or  not 
for  that  purpose,  are  not  evidence  against  the  client.  An 
admission  which  is  made  for  the  purpose  of  a  trial,  is  re- 
garded as  a  stipulation  of  the  party  making  it,  that  the  fact 
about  which  it  is  made  exists,  and  he  is  estopped  from  de- 
nying it.  {h) 

Termination  oj"  employment. — The  relation  of  attorney 
and  client  is  one  of  mutual  trust,  confidence  and  good  will ; 
and  any  conduct  on  the  part  of  the  attorney  which  must 
necessarily  put  an  end  to  these,  justifies  the  client  in  termi- 
nating the  relation,  by  notice  to  the  attorney.  (/) 

00  35  111-  55 ;  3S  Cal.  623 ;  14  Minn.  333. 

{g)  II  Md.  389;  2  Starkie  Ev.  136;  3  Met.  (Ky.)  438;  9  Iowa,  60. 

{/i)  3  Scam.  532;  II  Wis.  258;  19  Cal.  28;  14  Minn.  333. 

(/■)  18  Texas,  135. 


ATTORNEYS  AND  COUNSELORS  AT  LAW.    739 

Duties,  etc. — ShouW  not  be  witnesses. 
DUTIES    AND    LIABILITIES. 

The  duties  of  an  attorney  are  care,  skill  and  integrity. 
If  he  is  not  deficient  in  these  requisites,  he  is  not  responsi- 
ble for  any  error  or  mistake  arising  in  the  exercise  of  his 
profession;  (/)  but  a  deficiency  in  skill  or  care,  by  which 
a  loss  ensues  to  his  client,  renders  an  attorney  liable,  (k) 
He  will  be  held  liable  for  any  loss  occasioned  by  a  disobe- 
dience of  the  lawful  instructions  of  his  client.  (/) 

If  an  attorney  becomes  the  instrument  for  prosecuting 
and  imprisoning  a  party,  against  whom  he  knows  his  client 
has  no  just  claim,  or  cause  of  arrest,  but  is  actuated  by 
malicious  motives,  he  is  liable  to  the  injured  party,  (w) 

Ought  not  to  be  a  witness  for  his  client. — It  is  regarded 
as  of  very  doubtful  professional  propriety  for  an  attorney  to 
become  a  witness  for  his  client,  without  first  entirely  with- 
drawing from  any  further  connection  with  the  cause.  An 
attorney  occupying  the  attitude  of  both  witness  and  attor- 
ney for  his  client,  subjects  his  testimony  to  criticism,  if  not 
suspicion.  {ii) 

It  is  sometimes  indispensable  that  an  attorney,  to  prevent 
injustice,  should  give  evidence  for  his  client.  It  has,  there- 
fore, been  held  in  numerous  cases,  that  the  attorney  in  a  cause 
is  not,  because  such,  disqualified  from  being  a  witness  ;  {o\ 
even  though  his  fee  depends  on  iiis  success-;  (/)  and  thou<?-h 
he  expects  a  larger  fee  if  his  client  succeeds.  (^)  But  the 
practice  of  an  attorney  testifying  or  making  affidavit   for  his 

(j)  I  Tidd's  Pr.  255;  4  Burr.  2060;  l  B.  &  A.  102;  ante,  461.  See  54  111. 
520. 

{k)  13  Lai.  203;  3  Wils.  325;  I  Bing.  347;  30  Ala.  432;  iS  Ohio  St.  492; 
62  Penn.  203;   55  111.    151  ;  69  III.  38. 

(/)  8  Mass.  51 ;  12  Ind.  318;  84  III.  327. 

(/«)  13  111.  525;  3  Met.  (Ky.)  314;  34  Eng.  C.  L.  276.  See  16  111  213;  56 
111.   152. 

(«)  45  111.  447.     See  38  111.  65. 

(0)  22  L.  J.  Q.  B.  II ;  Ell.  &  B.  Il;  72  Penn.  St.  278;  13  Am.  Pep.  673;  3 
Mete.  (Ky.),  51 ;  3  Barb. '20. 

(/)   I  Dall.  (I'enn.),  241. 

[q)  17  Serg.  &  R.  (Penn.),  32;  I  lb.  32  ;  13  Ala.  17;  i  Murph.  (N.  C),  423. 


740    ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Acting  in  anotiier  capacity — Cannot  act  on  opposite  sides. 

client,  is  considered  objectionable;  (r)  and  should  be  dis- 
countenanced as  far  as  possible,  by  the  courts  and  counsel,  {s) 
In  LiU/e  vs.  McKeon,  i  Sandf.  607,  the  court  said  :  "  As  to 
the  effect  of  this  practice  upon  the  character  of  the  bar,  we 
think  the  evil  will  work  its  own  cure.  Attorneys,  as  well  as 
counselors,  of  standing  and  character,  will  never,  except  in 
extreme  cases,  present  themselves  before  a  jury  as  witnesses 
in  their  own  causes  on  litigated  questions,  and  in  such  cases 
only  on  some  unforeseen  necessity.  Those  gentlemen  of  the 
bar  who  habitually  suffer  themselves  to  be  used  as  witnesses 
for  their  clients,  soon  become  marked  both  by  their  associates 
and  the  courts,  and  forfeit  in  character  more  than  will  ever  be 
compensated  to  them  by  success  in  such  client's  contro- 
versies." 

Acting  in  anotJier  captcity. — A  solicitor  in  a  case  cannot  act 
as  a  special  master  to  execute  the  decree.  (/)  And  as  a  gen- 
eral rule,  a  receiver  in  a  cause  cannot  appoint,  as  his  attorney, 
the  attorney  of  either  party,  {it)  And  so  a  person  who  is 
administrator  of  an  estate  cannot  act  as  an  attorney  in  the 
prosecution  of  claims  against  the  same  estate,  {v) 

Cannot  act  on  opposite  sides. — An  attorney  owes  to  his 
client  fidelity,  secrecy,  diligence  and  skill ;  and  he  cannot, 
therefore,  serve  professionally,  both  parties  to  the  controversy, 
nor  accept  a  reward  from  the  other  side,  {zv)  So  an  attorney 
is  never  allowed  to  change  sides  in  the  same  cause,  though  at 
different  trials,  {x)  But  where  an  attorney,  in  the  course  of 
other  business,  has  obtained  a  knowledge  of  matters  connected 
with  the  suit  in  question,  he  will  not  generally  be  prevented 
from    acting  against  the  party  through    whose  business    he 

{r)  26  111.  68;  12  Tex.  180. 
(5)  9  Ired.  (N.  C.)  496;  8  Tenn.  St.  520. 
{t)  27  111.  349. 

{ii)  49  How.  (N.  Y.)  196;  4  Edvv.  Ch.  (N.  Y.)  416. 
{v)  32  Miss.  152.     See  116  III.  527. 

{w)  I  Waite's  Pr.  243;  Cro.  Eiiz.  914;  I  Daly  (N.  Y.),  512;  30  TIovv.  (N. 
Y.)  208;  15  Barb.  (N.  Y.)  650. 

{x)    15  Cal.  387;  II  Ga.  47;  4  Gray  (Mass.),  146;  iS  Ind.  137. 


ATTORNEYS  AND  COUNSELORS  AT  LAW.  741 

Liability  to  third  persons — Denlings  between  atiorney  and  client. 

obtained  such  knowledge,  and  counsel  may  act  as  such  at  the 
same  time  for  both  parties  to  a  transaction  ;  and  the  fact  that 
a  contract  is  drawn  by  and  under  the  advice  of  one  who,  at 
the  time,  is  counsel  for  one  of  the  parties,  when  such  fact  is 
known  to  the  other  party,  does  not,  in  the  absence  of  evi- 
dence of  fraud  or  unfairness,  invalidate  or  affect  the  con- 
tract, (j) 

Liability  to  third  persons. — One  who  suffers  an  injury  by  an 
unauthorized  appearance  of  an  attorney  for  him,  has  a  remedy 
by  action  against  the  attorney,  iz)  So  an  attorney  and  his 
client  are  both  liable,  for  an  execution  illegally  issued  by  the 
former,  [a) 

An  attorney  may  so  act  under  his  general  employment  to 
enforce  a  legal  claim,  as  to  render  himself  alone  liable  for  a 
malicious  prosecution  or  arrest.  {U)  He  does  not,  however, 
incur  any  civil  liability  for  ordering  a  levy  on  property,  if  he 
acts  in  good  faith  and  on  reasonable  cause,  {c)  And  he  is 
not  chargeable  with  a  trespass  of  the  constable  who  has 
charge  of  the  execution,  {d)  Nor  is  he  responsible  for  con- 
veying to  an  officer  his  client's  directions  for  seizing  goods  on 
an  execution,  {e) 

Dealings  betzveen  attorney  and  client. — The  highest  degree 
of  good  faith  is  required  from  an  attorney,  who,  while  the 
relation,  and  the  confidence  incident  to  it,  exists,  enters  into 
bargains  and  dealings  with  his  client.  The  confidential  nature 
of  the  relation  enables  the  attorney  to  exercise  a  strong  influ- 
ence over  the  actions  of  his  client ;  puts  it  in  his  power  to 
avail  of  his  necessities,  good  nature,  liberality  and  credulity; 
and  hence  the  law  not  only  watches  over  all  the  transactions 

{y)  56  N.  Y.  626;   I  Lans.  177;   i  Wait's    Ac.  &  L'ef.  448. 
(2)     7  Pick.  138;   I  Tyler,  (Vt.)  304;   Pet.  (C.  Ct.)  155. 
\a)  3  Hill    (N.   Y.),    523;   I    Abb.    Ct.  App.    (N.  Y.)  8;  4  Kcyes  (N.  Y.), 
291;  27  Mich.  244;   15  Am.  Rep.  1S5. 
{b)  13  111.  535;  56  III.  152. 
(f)  28  Ga.  297.     See  12  Rich.  (S.  C.)  583. 
{(i)  Wright  (Ohio),  102. 
{e)  13  N.  Y.  577. 


742    ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Assigned  to  defend  prisoners — Rights,    etc. — Privileged    communications. 

of  parties  in  this  predicament,  but  often  interposes  to  declare 
void, transactions  which,  between  other  parties,  would  be  held 
unobjectionable.  But  the  law  does  not  prohibit  an  attorney 
from  purchasing  property  from  his  client  when  the  transac- 
tion is  fair  and  honest,  and  in  no  manner  tainted  with  fraud, 
undue  influence  or  corruption.  {/) 

AssigJicd  to  defend  prisoners. — Paragraph  482  of  the  Crim- 
inal Code  provides,  that 

"  Every  person  charged  with  crime  shall  be  allowed  coun- 
sel, and  when  he  shall  state  upon  oath  that  he  is  unable  to 
procure  counsel,  the  court  shall  assign  him  competent  coun- 
sel, who  shall  conduct  his  defense.  In  all  cases  counsel  shall 
have  access  to  persons  confined,  and  shall  have  the  right  to 
see  and  consult  such  persons  in  private."  {g) 

Courts,  at  common  law,  had  the  power,  and  it  was  their 
duty,  to  assign  counsel  to  defend  persons  charged  with  crime, 
who  were  unable  to  employ  counsel,  and  such  has  always 
been  the  practice  in  this  state,  and  such  power  in  the  courts 
has  never  been  questioned.  {Ii) 

The  law  confers  on  licensed  attorneys  rights  and  privileges, 
and  with  them  imposes  duties  and  obligations,  which  must  be 
reciprocally  enjoyed  and  performed.  Counsel,  when  so 
assigned,  but  performs  an  official  duty,  for  which  no  compen- 
sation is  provided.  (J) 

RIGHTS  AND  PRIVILEGES. 

Privileged  communications. — Communications  made  by  a 
client  to  his  attorney,  with  a  view  to  obtain  professional 
advice  or  assistance,  are  privileged ;  and  courts  will  not 
require  or  permit  them  to  be  divulged  by  the  attorney,  with- 
out the  consent  of  his  client,  whose  privilege   it  is.  {s) 

A  statement  made  to  an  attorney  is  not  privileged  unless 

(/)  109  111.  385;  59  111.  496;  52  111.  472;  I  Dana  (Ky.),  582;  26  Conn. 
213;  9  Johns.  253;  2  Dana  (Ky.),  228;  21  Mich.  524;  7  Yerg.  (Tenn.)  30; 
4  Hayvv.  (Tenn.)  291;  3  Abb.  Ct.  App.-(N.  Y.)  210. 

(o-)   I  Starr  &  Curtis'  An.  Slat.  S61;  Rev,  Stat.  (1877)405. 

Xli)  110  111.  22;  19  111.  78. 

(?)  3  Gilm.  82  ;  no  111.  25;  19  111  78.  See  90  Penn.  St.  99;  17  Cnl.  61 ; 
28  How.  (N.  Y.)  22;  3  Heisk.  (Tenn.)  256;  48  Ga.  34S. 

(z)  II  Ohio  (N.  S.),  261  ;  39  Penn.  St.  191 ;  38  111.  172;  14  Pick.  420;  56 
111.  299  ;  85  111.  6x1  ;  113  111.  447. 


ATTORNEYS  AND  COUNSELORS  AT  LAW.  743 

Rights,  etc. — Fees. 

made  with  the  object  of  obtaining  professional  advice,  (c) 
An  attorney  who  is  merely  employed  to  draw  a  deed 
or  mortgage,  without  giving  any  legal  advice  in  regard 
thereto,  can  not  decline  to  testily  to  statements  made  by  his 
employer,  on  the  ground  that  they  are  privileged  commu- 
nications, (d) 

An  attorney  who  has  in  his  possession  receipts  which  his 
client  could  be  compelled  to  produce  or  disclose,  can  also 
be  compelled  to  produce  them,  or  testify  as  to  their  con- 
tents, (c) 

An  attorney's  clerk  is  also  privileged  as  to  any  commu- 
nications between  the  attorney  and  his  client,  to  the  same 
extent  that  the  attorney  may  be. 

A  communication  made  by  a  client  to  a  person  whom  he 
supposed  to  be  an  attorney,  and  whom  he  employed  as 
such,  but  who,  although  acting  as  an  attorney,  was  not  in 
fact  admitted,  are  not  privileged,  (y) 

While  an  attorney  may  not  disclose  the  confidential  com- 
munications of  his  client,  he  may  testify  to  facts  he  learns 
or  knows  from  other  sources  than  from  the  relation  of  at- 
torney and  client.  (^) 

I^ecs. — An  attorney  can  not  recover  for  services  rendered 
as  sucli,  unless  he  can  show  an  employment  or  retainer ;  (//) 
and  it  requires  a  retainer,  or  fee  paid,  to  constitute  the  re- 
lation of  attorney  and  client.  (/) 

Agreements  for  contingent  fees  to  attorneys  are  not 
against  law  or  public  policy.  (J) 

(c)  36  Barb.  (N.  Y.)  649;  24  Ark.  346;  26  Texas,  273. 
id)  26  111.  225;  sz  Barb.  (N.  Y.)  557. 

(e)  14  Ind.  169;    15  Ind.  50;    13  Md.  625;   29  Barb.   (N.  Y.)  622.     See  43 
Mo.  570;  43  111.  40. 

(/)   10  Iowa,  266;   13  Allen,  172;    I  Bradwcll,  563 ;    loi    Mas.s.  200. 

(^)  4SIII.  281.     See  50  111.  43. 

(//)  26  111.  21S. 

(«■)  26  111.  225 

(>)  iS  111.  499.     See  83  111.  60;  113  111.  662;  119  III.  159. 


744  ATTORNEYS  AND  COUNSELORS  AT  LAW. 

Rights,  etc. — Lien. 

Where  a  note  contains  a  stipulation  on  the  part  of  the 
maker,  that  in  case  suit  is  brought  on  the  note  he  will  pay 
ten  dollars  as  attorney's  fees,  that  sum  is  not  due  until  after 
the  suit  is  instituted,  and  can  not  be  included  in  the  judg- 
ment, (k) 

If  an  attorney  is  employed,  for  a  stipulated  fee,  to  pros- 
ecute a  suit  to  a  final  judgment,  and  his  client,  during  the 
progress  of  the  cause,  dismisses  him  without  any  fault  on 
his  part,  he  is  entitled  to  payment  for  the  services  already 
rendered,  if  not  to  the  stipulated  fee.  (/) 

An  attorney  can  not  recover  for  services  w'hich  through 
his  own  neglect  proved  to  be  of  no  value  to  his  client,  (ni) 

A  client  can  not,  at  his  ow^n  option,  by  the  employment 
of  additional  counsel,  reduce  the  amount  of  the  compensa- 
tion or  fee  which  he  had  stipulated  to  pay  to  the  original 
attorney,  (n) 

Lien. — At  common  law,  an  attorney  has  a  lien  for  his 
fees  upon  any  papers  of  his  client  which  may  come  into  his 
hands ;  {p)  and  this  is  not  confined  to  any  particular  case, 
but  extends  to  his  whole  account.  (  -f) 

As  to  the  rule  in  relation  to  the  lien  of  an  attorney  upon 
a  judgment  recovered  by  his  client,  there  is  great  conflict 
in  the  authorities..  In  Illinois,  {q)  Vermont,  New  Hamp- 
shire, Pennsylvania,  Texas,  Indiana  and  Missouri,  no  such 
lien  exists  ;  while  in  New  York,  Alabama,  Georgia  and 
Florida,  the  contrary  rule  seems  to  prevail,  (r) 

{k)  39  Geo.  5,  20,  310;  4  Nev.  304;  5  Bush,  (Ky.)  601 ;  2  Dal/,  (N.  Y.) 
138. 

(/)  14  Texas,  257. 

[m)  3  Wms.  (29  Vt. )  198. 

(«)  5  Florida,  43S. 

(0)  3  T.  R.  275  ;  4  T.  R.  123  ;  Tidd's  Pr.  337.     See  88  111.  447. 

(/)  Maule  &  S.  535  ;  2  Bar.  &  Cr.  616;   62  111.  210. 

{q)    52  111.  268;  46  111.  476.      See  41  111.  136;   56  111.  197. 

(r)  I  E.  D.  Smith,  (N.  Y.)  593;  29  Geo.  185;  8  Flor.  183;  38  Ala.  527; 
30  Tex.  180. 


SECURITY  FOR  COSTS.  745 

Statute. 


CHAPTER  XX. 

SECURITY  FOR   COSTS 
IN    ILLINOIS. 

It  has  already  been  shown  when  the  plaintiff  must  give 
security  for  costs  before  the  commencement  of  the  action,  (a) 

In  regard  to  security  for  costs  after  action  brought,  the 
statute  provides,  that  "if  at  any  time  after  the  commence- 
ment of  any  suit  by  a  resident  of  this  state,  he  shall  become 
non-resident,  or  if  in  any  case  the  court  shall  be  satisfied 
that  any  plaintiff'  is  unable  to  pa}''  the  costs  of  suit,  or  that 
he  is  so  unsettled  as  to  endanger  the  officers  of  the  court, 
with  respect  to  their  legal  demands,  it  shall  be  the  duty  of 
the  court,  on  motion  of  the  defendant  or  any  officer  of  the 
court,  to  rule  the  plaintiff,  on  or  before  a  day  in  such  rule 
named,  to  give  security  for  the  pa3'ment  of  costs  in  such 
suit ;  if  such  plaintiff  shall  neglect  or  refuse,  on  or  before 
the  day  in  such  rule  named,  to  file  an  instrument  of  writing 
of  some  responsible  person,  being  a  resident  of  this  state, 
whereby  he  shall  bind  himself  to  pay  all  costs  which  have 
accrued  or  may  accrue  in  such  action,  the  court  shall,  on 
motion,  dismiss  the  suit.  Provided,  that  the  defendant  or 
officer  makin$^  such  motion  shall  file  therewith  his  affidavit, 
or  the  affidavit  of  some  credible  person,  stating  that  he  has 
reason  to  believe,  and  does  believe,  that  in  case  such  suit  is 
prosecuted  to  a  conclusion,  a  judgment  will  be  rendered 
against  such  plaintiff  for  such  costs."  {b). 

The  motion  for  a  rule  on  the  plaintiff  to  give  security  for 
costs  is  usually  based  upon  the  affidavit  of  the  defendant, 
or  the  officer  or  person  at  whose  instance  the  application  is 
made,  setting  forth  the  ground  upon  which  the  rule  is 
asked.     Such  affidavit  may  be  as  follows  : 

(rt)  A,ite,  39,  42. 

i^b)  I  Starr  &  Curtis'  An.  Slat.   63S;   Rev.  Stat.  (1S77)  296.     See  Si  111.  61. 


746  SECURITY  FOR  COSTS. 

Affidavit  for  rule  to  give  security  for  costs,  etc. 

No.  330.     Affidavit  foi'  rule  to  give  security  for  coits. 

In  the Court. 

C.  D.  ^ 
ats.     >  Assumpsit. 

A.  B.  3  CD.,  the  above-named  defendant,  makes 
oath  and  says,  that  A.  B.,  the  plaintiff  above  named,  is 
unable  to  pay  the  costs  of  this  suit  {or  state  any  other  ground 
mentioned  in  the  statute^ ;  affiant  further  states  that  he  has 
reason  to  believe,  and  does  believe,  that  in  case  said  cause 
is  prosecuted  to  a  conclusion,  a  judgment  will  be  rendered 
against  the  plaintiff  for  such  cost. 

C.  D. 

Subscribed  and  sworn,  etc. 

The  plaintiff  may  file  a  counter  affidavit,  denying  the 
insolvency,  or  other  matter  ;  and  in  that  case,  it  seems,  the 
rule  will  be  discharged,  (c)  Such  motions  are  addressed 
to  t|ie  discretion  of  the  courts,  and  their  decisions  thereon 
can  not  in  general  be  assigned  for  error ;  {d)  but  if  the 
affidavit  in  support  of  the  motion  is  insufficient,  the  court 
has  no  power  under  the  statute  to  grant  the  rule,  and  if  it 
does  so,  its  decision  may  be  reviewed  in  the  Supreme 
Court,  {e)  Motions  of  this  kind,  it  is  said,  are  not  regarded 
very  favorably  by  the  courts,  and  slight  evioence  has 
usually  been  held  sufficient  to  discharge  the  rulp..  {/) 

Upon  a  motion  for  a  rule  upon  the  plaintiff  '.o  file  addi- 
tional security  for  costs,  an  affidavit  is  insufficient  which 
only  avers  the  insolvency  of  the  plaintiff  and  his  surety. 
It  should  show,  in  addition,  that  the  circumst'inces  of  the 
principal  or  surety  have  changed  since  the  approval  of  the 
former  security,  {g) 

On  an  appeal  by  the  defendant  from  ?.  judgment  of  a 

(C)    22  111.   259;  81   111.  61. 

{d)  4Glm.  319;  2  Gilm.  698;  30  III.  43;  43  111.  176;  51  111.  306. 
(e)  27  111.  332.     See  Breese,  377;  9  Bradw.  229. 
(/    22  111.  259;   65  III.  157. 

i  g)  27  111.  332. 


SECURITY  FOR  COSTS.  7^7 

Leave  to  prosecute  as  a  poor  person. 

justice  of  the  peace,  the  appellate  court  will  not  grant  a 
rule  on  the  plaintiff  to  give  security  for  costs,  {k) 

After  the  cause  has  been  called  for  trial,  a  motion  for  a 
rule  to  give  security  for  costs  comes  too  late,  even  though 
the  affidavit  sets  forth  that  the  affiant  has  just  learned  that 
the  plaintiff  is  insolvent.  (/) 

Where  an  action  is  brought  in  the  name  of  one  person 
for  the  use  of  another,  and  the  defendant  moves  for  a  rule 
to  give  security  for  costs,  it  is  not  sufficient  for  the  affidavit 
to  show  the  insolvency  or  non-residence  of  the  nominal 
plaintiff,  but  it  must  also  show  that  the  beneficial  plaintiff 
is  insolvent  or  non-resident,  (y) 

The  statute  also  provides  as  follows:  "  If  any  court 
shall,  before  or  after  the  commencement  of  any  suit,  be 
satisfied  that  the  plaintiff  is  a  poor  person,  and  unable  to 
prosecute  his  or  her  suit,  and  pay  the  costs  thereof,  they 
may,  in  their  discretion,  permit  him  or  her  to  commence 
and  prosecute  his  or  her  action,  as  a  poor  person  ;  and 
thereupon  such  person  shall  have  all  the  necessary  writs, 
process  and  proceedings,  as  in  other  cases,  without  fees  or 
charge.  The  court  may  assign  to  such  person  counsel, 
who,  as  well  as  all  other  officers  of  the  court,  shall  perform 
their  duties  in  such  suit  without  any  fees,  charge  or  reward  ; 
if  judgment  be  entered  for  the  plaintiff,  there  shall  be  judg- 
ment for  his  costs,  which  costs  shall  be  collected  for  the 
use  of  the  said  officers."  {k) 

A  motion  for  leave  to  prosecute  as  a  poor  person,  under 
this  section,  should  be  supported  by  an  affidavit,  which 
may  be  as  follows  : 

(k)  Breese,  (Beecher's  Ed.)  377  ;   19  111,  54.     See  12  111.  27. 

(i)  43  111.  176,     See  4  Scam.  2S3 ;  25  111. 202. 

{;)  I  Scam.  581;  51  111.  306. 

{k)  I  Starr  &  Curtis'  An.  Stat,  638;  Rev,  Stat.  (1S77)  296. 


748  SECURITY  FOR  COSTS. 

Affidavit  of  poor  jieisoii — Form  of  security. 

Nor   331.     Affidavit  on  motion  for   leave   to  prosecute  as   a 

poor  person. 

(  Venue,  and  title  of  cause. ) 

A.  B.,  the  above  named  plaintiff,  makes  oath  and  says,  that 
he  is  a  poor  person,  and  unable  to  prosecute  his  suit  in  this 
behalf,  and  pay  the  costs  and  expenses  thereof;  that  he  is, 
etc.  [Here  insert  any  other  fact  showing  the  plaintiff's  inability 
to  give  security  or  to  pay  costs);  that  he  has  reason  to  believe, 
and  does  believe  that  he  has  a  meritorious  cause  of  action,  '^nd 
that  he  will  recover  a  judgment  against  the  defendant. 

A.  B. 

Subscribed  and  sworn  to,  etc. 

Permitting  a  plaintiffto  sue  as  a  poor  person  is  generally  a 
matter  within  the  discretion  of  the  court.   (/) 

If  security  for  costs  is  given,  the  form  of  the  instrument 
may  be  as  follows  : 

No.   332.     Security  for  costs. 

In  the Court. 

A.  B.      ^ 
vs.         \  Assumpsit. 

C.  D,  j  I  hereby  enter  myself  security  for  costs  in  this 
cause,  and  acknowledge  myself  bound  to  pay,  or  cause  to  be 
paid,  all  costs  which  have  accrued,  or  may  accrue,  in  this 
action,  either  to  the  opposite  party  or  to  any  of  the  officers  of 
this  court,  in  pursuance  of  the  laws  of  this  state. 

Dated  this day  of ,  18 — . 

E.  F. 

If  the  security  is  objected  to,  it  is  incumbent  on  the  party 
tendering  it  to  satisfy  the  court  that  it  is  sufficient.  (;/z) 

(/)  30  111.  43;  9  Bradw.  229;  80  lil.   251;  81  III.  6l. 
{m)  3  Gilm.  98. 


CHANGE  OF  VENUE.  749 


Causes. 


CHAPTER  XXI. 

CHANGE   OF    VENUE 
IN   CIVIL   CASES. 

Causes. — The  statute  of  Illinois  provides,  "That  a  change 
of  venue  in  any  civil  suit  or  proceeding  in  law  or  equity, 
including  proceedings  for  the  exercise  of  eminent  domain, 
may  be  had  in  any  of  the  following  cases: 

First.  Where  the  judge  is  a  party  or  interested  in  the 
suit,  or  his  testimony  is  material  to  either  of  the  parties  to 
the  suit,  or  he  is  related  to,  or  shall  have  been  counsel  for 
either  party  in  regard  to  the  matter  in  controversy.  In  any 
such  case  a  change  may  be  awarded  by  the  court  in  term 
time,  with  or  without  the  application  of  either  party. 

Second.  Where  either  party  shall  fear  that  he  will  not 
receive  a  fair  trial  in  the  court  in  which  the  suit  or  proceed- 
ing is  pending,  because  the  inhabitants  of  the  county  are 
or  the  judge  is  prejudiced  against  him,  or  the  adverse  party 
has  an  undue  influence  over  the  minds  of  the  inhabitants. 
In  any  such  case  the  venue  shall  not  be  changed  except 
upon  application,  as  hereinafter  provided,  or  by  consent  of 
the  parties."  {a) 

A  change  of  venue  in  proceedings  by  information  in  the 
nature  of  a  quo  warrayito,  {d)  and  for  mandamus  against  a 
county,  {c)  and  in  any  suit  where  a  county  is  a  party  may  be 
taken,  [d) 

When  the  reasons  for  a  change  of  venue  cease  to  exist, 
the  necessity  and  the  right  to  a  change  also  cease,  {e) 

"  Neither  party  shall  have  more  than  one  change  of 
venue."  (/) 

Notice. — A  party  desiring  a  change  of  venue  must  give 
notice  of  his  intention  at  the  earliest  period.     If  the  cause 

[a)  2  Starr  k  Curtis'  An.  Stat.  2448-9;  Rev.   Stat.   \l^TJ)  1032;  37    111.  29; 
43  III.  408;  79  111.  112;  So  111.  106;  20  Biadw.  183. 
(6)  13  111.  582;  47  111.  384. 
(c)  50  111.  503. 

W)  53  111-  440. 
W  31  111.  353. 
(/)  2  Starr  &  Curtis' An.  Stat.  2452;   Rev.  Stat.  (1S77)  1033. 


CHANGE  OF  VENUE. 


Notice — Form  of  Notice — Petition. 


for  the  change  is  known  in  vacation  notice  should  be  given, 
and  the  application  made  to  the  judge  at  chambers.  The 
requirement  of  the  statute  as  to  notice  is  positive.  {Ji) 

The  notice  to  be  given  to  the  opposite  party,  or  his  attor- 
ney, may  be  in  the  following  form : 


In  the 
C.  D. 


No.  333.     Form  of  Notice. 
Court. 


ats.     V  Assumpsit. 
A.  B.    )  To  the  above  named  A.  B.,  plaintiff : 

Take  notice  that  on,  etc.,  or  as  soon  thereafter  as  counsel 
can  be  heard,  the  defendant  will  make  an  application  to  the 
(judge  of  the)  said  court  (at,  etc.),  for  a  change  of  venue  in 
this  cause,  on  account  of  {Jiere  state  the  ground  of  the  appli- 
cation) :  and  you  can  appear  and  resist  such  application  if 
you  see  fit  so  to  do. 

{Date.)  A  tfy  for  Deft. 

The  petition.  The  statute  of  1874  requires  that  "  Every 
application  for  a  change  of  venue  shall  be  by  petition,  set- 
ting forth  the  cause  of  the  application  and  praying  the 
change  of  venue;  which  petition  shall  be  verified  by  the 
affidavit  of  the  applicant." 

"  If  the  cause  for  the  change  is  the  prejudice  of  tlie 
inhabitants  of  the  county,  or  the  undue  influence  of  tlic 
adverse  party  over  their  minds,  the  petition  shall  set  forth 
the  facts  upon  which  the  petitioner  founds  his  belief,  and 
must  be  supported  by  the  affidavits  of  at  least  two  other 
reputable  persons,  residents  of  the  county.  The  adverse 
party  may  controvert  the  petition  by  counter  affidavits, 
and  the  judge  may  grant  or  deny  the  petition,  as  shall 
appear  to   be  according  to  the  right  of  the  case."  (z) 

No.  334.     Form  of  Petition  on  account  of  the  Prejudice  of  a 

Judge. 
{Title  of  Court,  etc.,  as  in  N'o.  333.) 
The  petitioner,  C.  D.,  defendant,  in  this  cause,  respectfully 

(h)  lb.     See  68  111.  362;  60  111.  462;   51  III.  108;  35  111.  loS;  29  111.  741 
70  111.  162;  72  111.  45,  138;  88  111.  103. 

(/)  2  Starr  &  Curtis'  An.  Stat.  2450 ;  Rev.  Stat.  (1S77)  1S33.    See  82  111.  228. 


CHANGE  OF  VENUE.  751 

Form  of  petition — Prejudice  of  judge — Prejudice  of  inhabitants. 

shows  to  the  (judge  of  the)  said  court  that  he,  the  peti- 
tioner, fears  that  he  will  not  receive  a  fair  trial  in  the  said 
court,  on  account  that  the  judge  thereof  is  prejudiced 
against  him,  the  petitioner,  so  that  he  can  not  expect  a  fair 
trial  in  the  said  court,  and  that  a  knowledge  of  such  preju- 
dice did  not  come  to  the  petitioner  until,  etc.  He  therefore 
prays  a  change  of  venue  in  this  cause,  pursuant  to  the 
statute  in  such  case  made  and  provided.  C.  D. 

{Title  of  Court ^  etc.^  as  in  No.  333,  ante.) 

C.  D.,  defendant  in  this  cause,  makes  oath  and  says,  that 
the  foregoing  petition  is  true  in  substance  and  in  fact. 
Subscribed  and  sworn  to,  etc.  C.  D. 

No.  335.     Form  of  Petition  on  account  of  Prejudice  of  Inhabit- 
ants, etc. 

{Title  of  Court,  etc.,  as  in  No.  333,  ante.) 

The  petitioner,  C.  D.,  defendant  in  this  cause,  respectfully 
shows  to  the  (judge  of  the)  said  court  that  he,  the  petitioner, 
fears  that  he  will  not  receive  a  fair  trial  in  the  said  court,  on 

account  that  the  inhabitants  of  the  said  county  of are 

prejudiced  against  the  petitioner  {or  that  A.  B.,  plaintiff  in 
this  cause,  has  an   undue  influence  over  the  minds  of  the 

inhabitants  of  said  county  of  )  so  that  the  petitioner 

can  not  expect  a  fair  trial  in  the  said  court ;  and  that  he, 
the  petitioner,  did  not  ascertain  the  existence  of  such  pre- 
judice (^r  influence)  until  within  the  last days;  and  that 

he,  the  petitioner,  founds  his  belief  upon  the  following  facts, 
etc.  {Here  set  forth  the  facts  upon  whicJi  the  petitioner  founds 
his  belief.)  The  petitioner  therefore  prays  a  change  of  venue 
in  this  cause,  pursuant  to  the  statute  in  such  cases  made  and 
provided.  C.  D. 

{Add  affidavit  as  in  last  precedent.,  also  affidavit  of  tzvo 
residents.) 

When  application  may  be  made. — "  The  application  may  be 
made  to  the  court  in  which  the  cause  is  pending  in  term 
time,  or  to  the  judge  thereof  in  vacation  ;  reasonable  notice 
thereof  having  been  given  to  the  adverse  party  or  his  attor- 
ney." "  No  application  for  a  change  of  venue  after  the  first 
term  shall  be  allowed,  unless  the  party  applying  shall  have 
given  to  the  opposite  party  ten  days'  previous  notice  of  his 
intention  to  make  such  application,  except  where  the  causes 
48 


1 


752      ■  CHANGE  OF  VENUE 

When  application  may  be  made — By  whom  application  shall  be  made. 

have  arisen  or  come  to  the  knowledge  of  the  applicant  within 
less  than  ten  days  before  the  making  of  the  application." 

"  No  change  of  venue  shall  be  granted  after  the  first  term 
of  the  court  at  which  the  party  applying  might  have  been 
heard,  unless  he  shall  show  that  the  causes  for  which  the 
change  is  asked  has  arisen  or  come  to  his  knowledge  since  the 
term  at  which  the  application  might  have  been  made."  {j) 

By  whom  application  shall  be  mad,e. — An  application  for  a 
change  of  venue  must  be  made  by  a  party  to  the  record.  {Jz) 

But  when  a  corporation  applies  any  recognized  officer 
thereof  may  make  the  requisites  affidavit.  (/) 

By  part  of  plaintiffs  or  defendants, — "  When  there  are  two 
or  more  plaintiffs  or  defendants,  a  change  of  venue  shall 
not  be  granted  unless  the  application  is  made  by  or  with 
the  consent  of  all  the  parties,  plaintiff  or  defendant,  as  the 
case  may  be :  Provided,  that  in  proceedings  for  the  con- 
demnation of  property,  when  the  application  is  by  or  against 
all  the  owners  of  any  parcel  of  property  to  be  condenmed, 
a  change  of  venue  may  be  made  of  so  much  of  the  case  as 
affects  them,  if  it  can  be  done  without  prejudice  to  the 
other  defendants  or  plaintiffs  in  such  proceeding."  (?;/) 

Where  a  part  of  the  defendants  have  let  judgment  go. by 
default  they  need  not  join  in  the  application.  («) 

When  a  part  of  the  defendants  who  were  served  with 
process  obtained  a  change  of  venue,  other  defendants  after- 
wards served  were  held  not  bound  by  such  order,  [p) 

Order  in  vacation. — "  When  a  change  of  venue  is  granted 
in  vacation,  the  judge  granting  it  shall  immediately  transmit 
the  petition  and  affidavits,  and  his  order  directing  the 
change  of  venue,  to  the  clerk  of  the  court  in  which  the 
cause  is  pending,  who  shall  file  the  same  in  his  office,  and 
make  a  entry  of  such  order  on  the  records  of  the  court." 

(7)  2  Starr  &  Curtis'  An.  Stat.  2451-2;  F.ev.  Stat.  (1877)  1033  ;  59  III.  203: 
72  III.  178.  See  6i  111.  362 ;  74  111.  394;  75  111.  198 ;  78  111.  525  ;  83  III.  501 ; 
71  111.  250. 

(/•)  2  Gilm.  419. 

(/)  48III.313. 

{m)  2  Starr  &  Curtis'  An.  Stat.  2452  ;  Rev,  Stat.  (1S77)  1033;  84  III.  195- 

(n)  13  111.  592';  4  Scam.  360. 

(0)  46  111.  424. 


CHAN.GE  OF  VENUE.        '        "       753 

Terms — Cost  of  change — When  to  be  paid. 

Terms  and  conditions. — :"  The  order  for  a  change  of  venue 
may  be  made  subject  to  such  equitable  terms  and  conditions 
as  safety  to  the  rights  of  the  parties  may  seem  to  require, 
and  the  judge  in  his  discretion  may  prescribe." 

Costs  of  the  change. — "The  expenses  attending  a  change 
of  venue  shall  be  taxed  by  the  clerk  of  the  court  from 
which  the  case  is  certified,  according  to  the  rate  established 
by  law  for  like  services,  and  shall  be  paid  by  the  petitioner, 
and  not  taken  as  a  part  of  the  costs  in  the  suit." 

When  to  be  paid. — "The  order  shall  be  void  unless  the 
party  obtaining  a  change  of  venue  shall,  within  fifteen  days? 
or  such  shorter  time  as  the  court  or  judge  may  prescribe, 
pay  to  the  clerk  the  expenses  attending  the  change." 

"  Where  the  venue  is  changed  without  the  application  of 
either  party,  the  costs  of  such  change  shall  abide  the  event 
of  the  suit."  (/) 

Transcript  papers,  etc. — "  In  all  cases  of  changes  of  venue 
the  clerk  of  the  court  from  which  the  changes  grianted  shall 
immediately  make  out  a  full  transcript  of  the  record  and 
proceedings  in  the  case,  and  of  the  petition,  affidavits  and 
order  for  the  change  of  venue,  and  transmit  the  same, 
together  with  all  the  papers  filed  in  the  case  to  the  proper 
court :  Provided^  that  when  the  venue  is  changed,  on  behalf 
of  a  part  of  the  defendants  to  a  condemnation  proceeding 
it  shall  not  be  necessary  to  transmit  the  original  papers  in 
the  case,  but  it  shall  be  sufficient  to  transmit  certified  copies 
of  so  much  thereof  as.  pertains  to  the  case  so  changed. 
Such  transcript  and  papers  or  copies  may  be  transmitted  by 
mail,  or  in  such  other  way  as  the  court  or  judge  may 
direct."  {(f) 

All  objections  to  the  transcript  should  be  made  at  the 
earliest  period,  (r)  and  all  exceptions  will  be  waived  if 
parties  proceed  to  trial.  {/) 

(/)  2  Starr  &  Curtis'  An.  Stat.  2453;  Rev.  Stat.  (1877)  1033  ;   58  111.  266. 
[q)  lb.     See  38  III.  528;  4  Scam.  339;  58  111.  266;  38  111.  528;  109  111.  245. 
(r;  3  Gilm.  299,  305. 
{s)   13  111.  592;  70  111.  171  ;  60  111.  63. 


754  CHANGE  OF  VENUE. 

Change  of  venue. — Observations. 

To  what  court. — "  When  a  change  of  venue  is  granted  it 
may  be  to  some  other  court  of  record  of  competent  juris- 
diction in  the  same  county,  or  in  some  other  convenient 
county,  to  wliich  there  is  no  vah'd  objection  :  Provided, 
that  when  the  action  is  pending  in  either  the  circuit  or 
superior  court  of  Cook  county,  and  the  only  causes  for  a 
change  of  venue  apply  to  one  or  more  but  not  all  of  the 
judges  of  such  court,  the  case  may  be  tried  before  some 
one  of  the  judges  of  such  court  to  whom  the  causes  do  not 
apply."  {t) 

Docketing  cause. — "  The  clerk  of  the  court  to  which  the 
change  of  venue  is  granted  shall  file  the  transcript  and 
papers  transmitted  to  him,  and  docket  the  cause,  and  such 
cause  shall  be  proceeded  in  and  determined  in  all  things,  as 
well  before  as  after  judgment,  as  if  it  had  originated  in  such 
court."  («) 

Irregularities  Waived. — "All  questions  concerning  the 
regularity  of  the  proceedings  in  a  change  of  venue,  and 
the  right  of  the  court  to  which  the  change  is  made  to  try 
the  cause  and  execute  the  judgment,  shall  be  considered  as 
waived  after  trial  and  verdict."  {!>) 

Where  a  change  of  venue  is  improperly  granted,  the 
proper  practice  for  the  party  complaining  is  to  move  to 
remand  the  cause  to  the  county  from  which  it  v/as  sent,  and 
if  his  motion  is  overruled  take  an  exception  and  embody  the 
motion  and  ruling  of  the  court  in  a  bill  of  exceptions,  (w) 

Criminal  cases. — For  proceedings  for  a  change  of  venue 
in  criminal  cases,  see  Rev.  Stat.  1877,  p.  1034,  and  2  Starr 
&  Curtis'  An.  Stat.  2454-S ;  also  cases  cited  below.  (,r) 

{t)  2  Starr  &  Curtis'  An.  Stat.  2454-5;   Kcv.  Sut.  (1877)  1034;  91    111.  182. 

(«)   lb.;  75  111.  548. 

(v)  lb.;  3  Scam.  87;  13  111.  592;  15  111.  515;  66  111.  63;  3  Gilm.  295,  395; 
70  111.  171 ;  66  111.  63;  67  111.  485  ;  94  111.  521, 

[w)   66  111.  63. 

{x)  65  III.  230;  66  111.  118;  91  111.  182;  93  111.  253;  U  111.  121;  26  111. 
345  ;  36  111.  290;  50  111.  503;  100  HI  45S. 


CONTINUANCES.  755 

How  and  when  applied  for — Want  of  testimony. 


CHAPTER  XXII. 

CONTINU AN  CE  S 
IN   ILLINOIS. 

It  is  in  the  power  of  the  court,  generally,  to  grant  a  con- 
tinuance to  either  party,  upon  sufficient  cause  shown. 

How  and  when  a-pf  lied  for. — An  application  for  a  con- 
tinuance is  made  by  motion,  based  on  the  affidavit  of  the 
party,  or  of  some  other  person  acting  for  him.  The  motion 
is  often  rrade  orally,  though  the  better  practice  is  to  make 
all  motions  in  writing.  If  the  application  is  granted,  the 
fact  is  minuted  on  the  docket.  The  motion  should  be  made 
as  soon  as  possible  after  the  commencement  of  the  term,  or 
after  the  cause  of  continuance  is  known  to  exist,  {a) 

For  want  of  testimony. — The  want  of  material  testi- 
mony, which  the  party  has  used  due  diligence  to  obtain, 
and  which  he  can  probably  procure  at  a  future  term,  is  a 
good  cause  for  a  continuance  of  the  suit.  The  practice-act 
provides,  in  this  regard,  as  follows : 

"When  either  party  shall  apply  for  a  continuance  of  a 
cause  on  account  of  the  absence  of  testimony,  the  motion 
shall  be  grounded  on  the  affidavit  of  the  party  so  applying, 
or  his  authorized  agent,  showing  that  due  diligence  has 
been  used  to  obtain  such  testimony,  or  the  want  of  time  to 
obtain  it,  and  what  particular  fact  or  facts  the  party  expects 
to  prove  by  such  evidence  ;  and  if  the  evidence  is  the  testi- 
mony of  a  witness,  his  place  of  residence,  or  if  his  place 
of  residence  is  not  known,  showing  that  due  diligence  has 

(a)  See  41  111.  300;  36  111.  i;2' 


756  CONTINUANCES. 

Form  of  affidavit — absence  of  witness. 

been  used  to  ascertain  the  same,  and  that  if  further  time  is 
given  his  place  of  residence  can  be  ascertained,  {a) 

"Should  the  court  be  satisfied  that  such  evidence  would 
not  be  material  on  the  trial  of  the  cause,  or  if  the  other 
party  will  admit  the  affidavit  in  evidence,  the  cause  shall 
not  be  continued. 

"When  the  affidavit  is  concerning  the  evidence  of  a  wit- 
ness, the  party  admitting  such  affidavit  shall  be  held  to  ad- 
mit only  that  if  the  absent  witness  was  present,  he  would 
testify  as  alleged  in  the  affidavit,  and  such  admission  shall 
have  no  greater  force  or  effect  than  if  such  absent  witness 
were  present  and  testified  as  alleged  in  the  affidavit,  leav- 
ing it  to  the  party  admitting  such  affidavit  to  controvert  the 
statements  contained  therein,  or  to  impeach  said  witness, 
the  same  as  if  such  witness  were  present  and  examined  in 
open  court."  {d) 

The  form  of  the  affidavit  for  a  continuance,  on  account 
of  the  absence  of  a  witness,  may  be  as  follows  : 

^^^'  33^'     Affidavit  by  defendant  for  continuance^  on  ac- 
count of  absence  of  witness,  {c) 

In  the Court. 

Term,  iS — 

C.  D.  ^ 
ats.     >  Assum-psit. 

A.  B.  ) 

C.  D.,  the  above-named  defendant,  makes  oath  and 
says,  that  he  can  not  safely  proceed  to  the  trial  of  this 
cause  at  the  present  term  of  this  court,  on  account  of  the  ab- 
sence of  one  J.  K.,  xvJio  resides  in ,  and  is  a  material 

witness  on  the  part  of  this  affiant.  And  this  affiant  further 
saj^s,  that  he  expects  to  prove  by  the  said  J.  K.,  that  [here 
set  forth  what  is  expected  to  be  -proved  by  the  witness). 
And  this  affiant  further  says,  that  (here  set  forth  what  dili- 
gence has  been  used  to  procure  the  attendance  or  testimony 
of  the  witness,  and  to  ascertain  his  place  of  residence,  if 


(a)  2  Starr  &  Curtis'  An.  Stat.  1809;  Rev.  Stat,  (1877)  739;  75  III.  236;  76 
111.  319;  78  III.  212 ;   80  111.  236 ;  82  111.  37. 

(6)  2  Starr  &  Curlis'  An.  Stat.  181 1;  Rev.  Stat.  (1S77)  740;  85  111.  89,  174; 
70  111.  276  ;  94  111.  96. 

{c)  See  I  Scam.  528;  2  Scam.  71,  454;  16  111.  50S;  32  111.  59;  34  111.  449; 
38  111.  449. 


CONTINUANCES.  757 


Continuance  for  want  of  testimony. 


alleged  to  be  unkno-wti).  And  this  affiant  further  says, 
that  he  knows  of  no  other  person  or  persons  by  whom  he 
can  so  fully  prove  the  matters  above  set  forth  ;  [that  if  fur- 
ther time  is  given,  the  place  of  residence  of  the  said  J.  K. 
can  be  ascertained  ;]  that  this  affiant  expects  to  procure  the 
testimony  of  the  said  J.  K.  at  the  next  term  of  this  court ; 
and  that  this  application  is  not  made  for  delay,  but  that 
justice  may  be  done. 

C.  D. 

Subscribed  and  sworn,  etc. 


Where  a  party  moves  for  a  continuance,  on  the  ground 
of  the  absence  of  material  testimony,  he  should  show  in 
his  affidavit  what  the  testimony  would  be  ;  and  if  the  court 
thinks  it  material,  a  continuance  will  be  granted,  (t/) 

If  an  affidavit  is  merely  filed,  and  no  motion  is  founded 
thereon,  it  is  not  the  duty  of  the  court  to  grant  the  continu- 
ance, ic) 

A  motion  for  a  continuance,  founded  upon  the  absence 
of  witnesses,  will  be  refused,  if  the  facts  to  be  proved  are 
not  material  to  the  issue  in  the  cause,  (y) 

An  affidavit  for  a  continuance,  which  does  not  show  the 
residence  of  a  witness,  is  insufficient.  This  is  indispensa- 
ble, as  connected  with  his  identification  and  the  dilio-ence 
used  to  obtain  his  attendance,  {g) 

A  person  desiring  a  continuance  of  a  cause  is  bound  to 
show  that  he  has  made  reasonable  exertions  to  prepare  for 
the  trial,  without  success,  or  some  good  reason  for  not 
making  such  exertions,  {li)  But  each  case  depends  upon 
the  particular  circumstances  shown.  A  party  does  not 
show  diligence  if  he  relies  upon  making  his  proof  by  the 
deposition  of  a  witness  who,  upon  examination,  disappoints 
him.     It  is  his  duty  to  inform  himself  as  to  tlie  knowledge 

((/)  15  Ind.  257.  See  45  111.  228. 
(<?)  I  Scam.  589;  102  111.  402. 
(/)  28  111.303;  86  111.  132. 

{g)   20  111,  392;  50  111.  21;  See  31  111.  170;  82  111.  37;  69  111.  55. 
{h)   5  Gilm.  85;  18  111.  439;  27  111.  18;  31  111.  170;  22  111.  102;  87  111.433; 
75  III.  236,  54S:.  71  111.  II;  72  111.  69;  119  111.  250. 


753  CONTINUANCES. 

Continuance  for  want  of  testimony. 

of  the  witness ;  and  if  such  witness  does  not  possess  the 
requisite  information,  the  party  should  procure  the  testi- 
mony he  requires  from  other  witnesses,  if  any  can  be 
found.  (/) 

A  continuance  will  not  be  granted  because  a  witness  has 
said  that  he  would  be  present  at  the  trial,  and  that  he  had 
been  served  with  subfoena  on  behalf  of  the  opposite  party. 
The  party  desiring  the  testimony  of  a  witness  should  secure 
his  presence  at  the  trial,  (y) 

Where  a  witness  could  not  come,  on  account  of  sickness 
in  his  family,  and  therefore  his  attendance  could  not  have 
been  procured  by  subpcena,  it  was  held  that  it  did  not  mat- 
ter whether  he  had  been  served  or  not,  and  that  a  continu- 
ance ought  to  have  been  granted,  [k] 

When  a  continuance  has  once  been  granted,  on  affidavit, 
another  continuance  should  not  be  granted,  where  even 
ordinary  efforts  have  not  been  made  to  obtain  the  testimony 
of  the  witnesses,  and  their  absence  is  not  accounted  for.  (/) 
Greater  diligence  should  be  required  on  a  second  or  third 
application  for  a  continuance,  than  on  the  first  application. 
The  fact  that  a  party  applies  for  the  continuance  of  a  cause 
a  second  time,  on  account  of  the  absence  of  the  same  wit- 
ness, might  create  the  suspicion  that  the  party  was  not 
sufficiently  anxious  for  his  attendance  to  make  the  necessary 
efforts  to  procure  it ;  and  evidence  of  greater  diligence  will 
be  required  than  on  a  first  application ;  and  still  greater 
diligence  should  be  shown  on  each  successive  application. 
The  party  should,  on  the  second  application,  be  required 
to  show  something  more  than  a  mere  service  of  a  sitbfcena; 
he  should  avail  himself  of  other  legal  means  to  compel  the 
attendance  of  the  witness.  If  such  witness  is  within  the 
reach  of  the  process  of  the  court,  the  party  should  apply 

(0  i8  111.  439;  86  111.  132;  87  111.  433;  93  111.  3S1. 

(y)  27  111.  18;  43  111.  223;  70  111.  445;  95  111.  94. 

{k)   2  Scam.  455.  See  i  Gilm.  236;  17  111.  558.  See  71  111.  83. 

(/)  2  Scam.  522;  21  111.  87;  76  III.  319  ;  83  111.  232. 


CONTINUANCES.  759 

Continuance  for  want  of  testimony. 

for  an  attachment  to  compel  his  attendance,  as  soon  as  he 
tails  to  attend  under  the  subfcena.  The  affidavit  should 
?tate  that  the  witness  is  not  absent  by  the  consent  of  the 
party ;  and  also  that  the  party  expects  to  procure  the  evi- 
dence of  the  witness  by  the  next  term.  The  affidavit 
should  also  state  that  the  party  has  no  other  witness  by 
whom  the  same  facts  can  be  proved ;  or  if  there  is  a  dis- 
puted point,  and  numerous  witnesses  are  to  be  examined, 
show  that  fact,  or  that  there  is  a  question  of  identity  upon 
which  there  will  be  a  contrariety  of  evidence.  This  is 
necessary  in  order  to  show  the  materiality  of  the  testimony 
of  the  witness,  {iti) 

If  the  testimony  of  the  absent  witness  is  important  only 
in  connection  with  certain  facts,  those  facts  should  be  set 
forth  or  referred  to  in  the  affidavit,  so  that  the  materiality 
of  the  evidence  may  be  apparent  to  the  court.  («) 

The  affidavit  should  set  forth  the  facts  expected  to  be 
proved, with  such  certainty  that  the  opposite  part}'  can,  if 
he  thinks  proper,  admit  the  affidavit  and  go  to  trial.  {0) 

Where  a  party  relies  upon  the  promise  of  a  witness  to  be 
present  at  the  trial,  he  can  not  obtain  a  continuance  if  the 
witness  does  not  attend.  (^) 

To  justify  the  continuance  of  a  cause  by  reason  of  the 
absence  of  a  witness,  something  more  than  writing  let- 
ters, and  making  inquiries  as  to  his  residence,  etc.,  is  re- 
quired, {q) 

An  application  for  a  continuance,  on  account  of  the  ab- 
sence of  a  witness,  should  not  only  show  diligence,  but 
that  there  is  no  other  witness  to  prove  the  same  facts,  and 
that  the  witness  ma}'^  be  in  attendance  at  another  term.     A 

(w)  21  111.  87.  See  22  III.  628;  38  III.  4^9;  63  111.  77;  72  III.  69. 

(«)  12  111.  459.  See  35  111.  240;  86  111.  132. 

{0)   13  111.  76;  20  111,  315. 

(/)  22  111.  102,  See  43  111.  223;  70  111.  445  ;  82  111.  37. 

(</)  22  111.  238;  71  111.  II  ;  ic6  111.  558. 


760  CONTINUANCES. 

By  reason  of  amendment — Want  of  declaration,  etc. 

delay  of  six  months,  without  having  a  stibpcena  issued  for 
a  witness,  shows  a  want  of  diligence,  (r) . 

An  affidavit  which  shows  that  the  witnesses  have  been 
duly  required  by  subpoena  to  attend  the  court  at  which  the 
trial  is  to  be  had,  shows  sufficient  diligence  in  that  respect. 
The  court  may  ascertain  whether  a  witness  is  present,  and 
if  he  is,  may  overrule  the  application  for  continuance,  (s) 

If  a  witness  resides  in  another  county  than  that  in  which 
the  court  is  held,  it  must  appear  that  his  fees  have  been 
tendered  or  paid  to  him,  before  a  party  can  have  a  contin- 
uance on  the  ground  of  his  not  appearing  after  being  sum- 
moned. 

Where  the  affidavit  does  not  pretend  to  show  a  case 
within  the  statute,  entitling  the  party  to  a  continuance  as  a 
matter  of  right,  the  application  is  at  most  addressed  to  the 
discretion  of  the  court  to  which  it  is  made.  (/) 

The  granting  of  a  continuance  by  a  court  can  not  be  as- 
signed for  error,  {u) 

The  amending  of  affidavits  for  continuance  is  highly  im- 
proper, and  should  not  be  allowed,  {v) 

By  icasoji  of  amendment. — No  amendment  will  be  a  cause 
for  a  continuance  unless  it  appears  by  affidavit  that  the  opposite 
party  is  unprepared  to  proceed  to  or  with  the  trial  of  the 
cause,  etc.  {w) 

For  want  of  declaration^  or  copy  of  instrument  or  ac- 
count^ filed  in  time. — The  practice-act  also  provides,  that 

(r)  22  111.  628.  See  31  III.  170;  43  111.  223;  45  111.  22S  ;  60  111.  378;  85 
in.  132 ;  109  111.  635,  444. 
{s)   16  111.  507, 

(t)   14  111.484;  63  111.  389;  69  111.  55. 

(«<)  4  Scam.  309;  4  Bosw.  (N.  Y.)  64;   10  Ohio  (N.  S.)   59S,  691. 
{v)   13  111.  76.     See  78  111.  127;  79  111.  112. 
[w)  Rev.  Stat.  (1877)  737;  78  111.  442;  76  111.  204,  381 ;  75  111   41. 


CONTINUANCES.  Iti 

Continuance — Defendant  in  military  ser^'ice. 

"if  the  plaintff  shall  not  file  his  declaration,  together  with 
a  copy  of  the  instrument  of  writing  or  account  on  which  the 
action  is  brougkt,  in  case  the  same  be  brought  on  a  written 
instrument  or  account,  ten  days  before  the  court  at  which 
the  summons  or  capias  is  made  returnable,  the  court,  on 
motion  of  the  defendant,  shall  continue  the  cause  at  the 
cost  of  the  plaintiff."  {x) 

Under  this  provision  it  is  held,  that  if  the  declaration 
is  not  filed  ten  days  before  the  term,  the  defendant  may 
appear,  and  have  the  cause  continued  at  the  plaintiff's  costs  ; 
but  if  the  defendant  does  not  apply  for  such  continuance, 
the  cause  will  be  continued  generally,  and  the  costs  will 
abide  the  result  of  the  suit,  {y) 

If  a  copy  of  the  instrument  or  account  sued  on  is  not  filed 
ten  days  before  the  term,  the  defendant  may  obtain  a  con- 
tinuance ;  but  if  he  goes  to  trial  without  objection,  {z)  or 
pleads  to  the  action,  {a)  he  can  not  afterwards  take  advan- 
tage of  the  failure  to  file  such  copy. 

The  defendant  is  entitled  to  a  continuance,  if  the  plaintiff 
does  not  file  a  copy  of  his  account  ten  days  before  the  terra, 
where  he  has  common  counts  in  his  declaration,  as  well  as 
a  special  count  on  a  note.  If  the  plaintiff  desires  to  avoid 
a  continuance,  he  can  stipulate  that  he  will  rely  alone  on 
the  note,  or  he  can  enter  a  nolle  prosequi  as  to  the  common 
counts,  (b) 

Where  a  suit  is  brought  by  .an  indorsee  of  a  promissory 
note,  it  is  sufficient  to  file  a  copy  of  the  note.  The  filing 
of  a  copy  of  the  indorsement  is  not  necessary,  {c] 

Defendant  in  military  service. — The  practice-act  also 
provides,  that  it  shall  be  a  sufficient  cause  for  a  continu- 

{x)  2  Starr  &  Curtis'   An.   Stat.   17S3;  Rev.  Stat.  (1S77)  736;  75  111.  63;  76 
111.  321;  79  111.  259,  274;  83  111.  232. 
(y)  24  111.  623.     See  84  111.  278. 
\z)  36  111.  68.     See  2  Scam.  217. 
{a)  36  III.  521 ;  41  111.  300.  ' 
{b)  22  111,  225;  91  111.  127. 
(c)  See  26  111.  185 ;  28  111.  So ;  97  U.  S.  3S9. 


762  CONTINUANCES. 

Party  or  counsel  in  the  legislature — Teitns. 

ance,  in  time  of  war  or  insurrection,  that  the  defendant  is 
in  the  military  service  of  the  United  States,  or  of  the  state 
of  IlHnois,  if  it  shall  be  made  to  appear  to  the  court,  by  affi- 
davit, that  the  presence  of  the  defendant  is  in  any  degree 
necessary  to  a  full  and  fair  defense  of  the  suit,  {d) 

Party  or  counsel  in  the  legislature. — It  is  further  pro- 
vided by  the  practice-act,  that  in  any  suit  pending  while  the 
general  assembly  is  in  session,  it  shall  be  a  sufficient  cause 
for  a  continuance  if  it  shall  appear  to  the  court,  by  affida- 
vit, that  the  part}^  applying,  or  any  attorney,  solicitor  or 
counsel  of  such  party,  is  a  member  of  either  house  of  the 
general  assembly,  and  actually  attending  the  sessions  of 
the  same,  and  that  the  attendance  in  court  of  such  party  or 
counsel,  etc.,  is  necessary  to  a  fair  and  proper  trial  of  such 
suit.  When  continued  for  this  reason,  no  trial  or  other  pro- 
ceedings will  be  had  in  the  cause  until  the  adjournment  of 
the  legislature,  nor  within  ten  days  thereafter.  This  pro- 
vision does  not  apply  unless  the  employment  of  the  coun- 
sel, etc.,  was  before  the  commencement  of  the  session  of 
the  legislature,  {e) 

On  remanding  of  cause  from  Supreme  Court. — A  party 
is  not  entitled  to  a  continuance,  as  a  matter  of  right,  because 
the  mandate  and  opinion  of  the  Supreme  Court,  on  remand- 
ing the  cause,  were  not  filed  ten  days  before  the  term.  He 
is  only  entitled  to  sufficient  time  to  prepare  for  trial.  (/") 

Terms. — The  court  may  in  general  impose  any  terms, 
on  granting  a  continuance,  which  the  justice  of  the  case 
may  require.  If  the  cause  may  be  tried  at  the  term,  the 
party  obtaining  a  continuance  usually  has  to  pay  the  costs 
of  the  term — as  in  cases  of  continuance  for  want  of  wit- 

{d)  2  Starr  cS:  Curtis'  An.  Stat.  181 1 ;  Rev.  Stat.  fiS;;)  740.     See  32  Til.  541. 
(e)  lb.;  lb.;  78    111.  127;  83  111.  545;   67  111.    238;  68  111.  144;  17  Bradw. 
607. 

(/)  28  111.  303. 


CONTINUANCES.  763 

Terms. 

nesses ;  but  where  application  is  made  on  account  of  a 
failure  to  file  tlie  declaration,  or  a  copy  of  the  instniment 
or  account  sued  on,  the  continuance  is  (by  the  statute)  at 
the  costs  of  the  plaintiff^  Where  the  continuance  is  gen- 
eral, the  costs  will  abide  the  result  of  the  suit,  (g) 

{g)  See  24  111.  623. 


764 


AMENDMENTS. 


Amendments. 


CHAPTER   XXIII. 


AMENDMENTS. 


It  has  been  remarked,  that  the  history  of  the  English 
law  in  regard  to  amendments  would  illustrate  the  common 
and  natural  tendency  of  all  men,  at  all  times,  where  an 
abuse  exists  in  government,  morals,  or  conduct,  to  correct 
the  abuse  a  little  too  thoroughly,  (a)  In  early  times,  the 
English  courts  permitted  parties  to  amend  their  pleadings, 
as  well  after  as  before  judgment  was  pronounced,  and  even 
after  the  judgment  was  entered.  If  any  misentry  had 
been  made,  it  was  corrected  by  the  minutes,  or  by  the  rec- 
ollection of  the  judges.  But  under  this  practice  of  amend- 
ing records,  the  judges  altered  and  falsified  their  own 
records  for  sinister  purposes,  by  making  erasures  and 
amendments  privately ;  and  this  abuse  became  so  great, 
that  in  the  reign  of  Edward  I  very  heavy  punishments 
were  inflicted  upon  almost  all  the  king's  justices.  The 
succeeding  judges,  bent  on  a  thorough  and  radical  reform 
of  this  great  abuse,  resolved  that  a  record  should  be  held 
sacred,  and  should  not  be  amended  at  all,  when  enrolled, 
and  the  term-  was  at  an  end.  The  rule  having  been  thus 
established,  their  successors  found  themselves  tied  down  to 
a  reform  by  which  manifest  errors,  slips  of  the  pen  and  mis- 
spellings occasioned  the  reversal  of  meritorious  judgments ; 
and  such  palpable  injustice  was  thereby  occasioned,  that 
the  British  Parliament  has,  from  time  to  time  ever  since, 


(a)  2  Swan's  Pr.  S43. 


AMENDMENTS.  765 

Amendments  generally. 

been  endeavoring  to  reform  the  reform,  and  has  passed  a 
great  many  statutes  for  that  purpose.  (3) 

Amendments  generally. — Amendments  at  common  law, 
independently  of  any  statutory  provision  on  the  subject, 
are  in  all  cases  in  the  discretion  of  the  court,  for  the  fur- 
therance of  justice,  {c)  They  may  be  made  while  the 
proceedings  are  in  paper,  that  is,  until  judgment  is  signed, 
and  during  the  term  in  which  it  is  signed ;  for  until  the 
end  of  the  term  the  proceedings  are  considered  only  in 
fieri.,  and  consequently  subject  to  the  control  of  the  court ;  {d) 
and  even  after  judgment  is  signed,  and  up  to  the  latest 
period  of  the  action,  amendment  is  in  most  cases  allowable, 
in  the  discretion  of  the  court,  under  statutes  for  allowing 
amendments  of  the  record  ;  and  in  later  times  the  judges 
have  been  much  more  liberal  than  formerly,  in  the  exercise 
of  this  discretion,  (e)  Amendments  may  be  made  after 
the  term,  {/)  although  formerly  the  rule  was  other- 
wise ;  {g)  and  even  after  error  brought,  where  there  has 
been  a  verdict  in  the  cause,  (/z)  A  remittitur  danina  may 
be  allowed  after  error ;  {i)  and  this  although  error  has  been 
brought  on  the  ground  of  the  excess  of  damages  remit- 
ted ;  (y  )  but  the  application  for  tls.e  remittitur  must  be 
made  in  the  court  below.  {Jc)     So  by  agreement  of  attor- 

{b')  Z  Cla.  Com.  407-411;  2  Swan's  Pr.  843.  See  statutes,  Bac.  Abr. 
Amend. 

(c)  1  Bouv.  Die.  98.  See  3  Scam.  342 ;  13  111.  76,  122,  131 ;  i  Scam.  321 ; 
2  Scam.  65;  32  111.  381 ;  50  111.  422.     But  see  also  sec.  61,  111.  prac.  act. 

{d)  2  Burr,  756;  3  Bla.  Com.  407;  3  Salk.  31 ;  11  111.  511 ;  18  111.  390;  55 
111.  35S. 

{e)  3  McLean,  379;   i  Tiranch,  437;  9  .^la.  547.     See  46  111.  34. 

(/■)  II  lil.  57,  511;  2  Sc.im.  539;  I  Sc.un.  122;  3  Scam,  y3;  15  Ind.  73. 
See  13  111.  122;   36  111.  1 14;  40  111.  I02. 

{g)  Co.  Lit.  260,  a;  3  Bla.  Com.  407. 

(A)  2  Serg.  &  R.  432;  33  I!L  287;  53  III.  323. 

(i)  2  Dall.  184;   I  Yeates.  186;  Addis,  115. 

{j  )  2  Serg.  &  R.  221 ;  2  Scam.  539. 

[k)  I  Serg.  &  R.  49. 


766 


AMENDMENTS. 


Terms — Executions — Returns. 


neys,  the  record  may  be  amended  after  error.  (/)  Amend- 
ments are  however  always  Hmited  by  due  consideration  of 
the  rights  of  the  opposite  party  ;  and  when  by  the  amend- 
ment he  would  be  prejudiced,  or  exposed  to  unreasonable 
delay,  it  is  not  allowed,  (w) 

Terms. — When  an  amendment  is  allowed,  the  court 
usually  imposes  terms  upon  the  party  at  whose  instance  the 
amendment  is  made,  as  the  payment  of  cOvSts.  This,  how- 
ever, is  in  the  discretion  of  the  court.  {ii) 

Amendment    of  executions. An    execution    may   be 

amended  by  the  judgment,  as  well  after  as  before  a  sale 
under  it.  (<?)  But  it  will  not  be  permitted  to  amend  an 
execution  by  striking  out  the  name  of  the  county  to  which 
it  is  directed,  and  inserting  another,  after  a  sale  under  such 
writ.  (/) 

Amendment  of  returns. — The  return  of  an  officer  can 
be  amended  at  any  time,  and  this  without  notice.  Amend- 
ments by  sheriffs  of  their  returns  to  process  are  of  course. 
No  resistance  can  be  made 'to  the  application  to  amend ; 
but  if  the  sheriff  makes  a  false  return,  he  is  responsible  for 
the  consequences,  {cj)  And  he  may  make  such  amend- 
ment after  his  term  of  office  has  expired,  (r)  But  after  a 
writ  has  been  actually  returned  to,  and  placed  in,  the 
clerk's  office,  the  return  can  only  be  amended  by  leave  of 
the  court,  which  leave  is  however  rarely  refused.  (5) 


(/)  I  Bin.  75;  2  Bin.   169. 

{in)  See  Bac.  Abr.  Amend. ;  2  Arch.  Pr.  230;  Stepli.  PI.  97;  Bouv.  Inst. 
Amend.  ;   18  111.  390;  36  111.  114. 

(m)  3  Scam.  45  ;  32  111.  331  ;  17  Cal.  285.  See  Rev.  Stat.  (1S77)  129,  737  ; 
78  111.  507. 

(o)  2S  111.  147,  264.     See  36  111.  114. 

(^)  2  Gilm.  151.     See  36  111.  114. 

\q)  3  Gilm.  149;  2  Gilm.  5S1 ;  15  111.  266;  16  111.  43;  33  III.  2S7;  43  111 
260;  35  111.  265;  47  111.  217;  53  111.  323;  17  Ind.  195;  2  Allen,  338;  69 
111.  22;  13  Bradw.  572;   108  111.  464. 

(r)  15  111.  97,  266;  I  Pick.  461,  hardin,  63.  See  I  Gilm.  185;  16  Maine, 
124;  6  Munf.  181 ;   112  111.  29;   13  Bradw.  294. 

[s]   19  111.  440;  70  111.  236.     See  62  111.  50;  57  111.  226. 


AMENDMENTS.  767 

Amendment  of  records — Statutes — Amendments  before  judgment. 

Amendment  of  records — Courts  have  authority  to  allow 
amendments  of  their  records,  during  the  term  in  which  they 
are  entered  ;  {t)  and,  if  merely  in  matters  of  form,  without 
notice ;  and  they  may  permit  amendments  in  matters  of 
form  at  a  subsequent  term,  if  notice,  actual  or  constructive, 
has  been  given  to  the  opposite  part}',  [ti)  An  amendment 
of  a  judgment,  at  a  subsequent  term,  without  notice  to  the 
adverse  party,  will  not  avail  the  party  making  the  amend- 
ment, [u) 

Amendments  should.be  made  from  the  minutes  of  the 
judge,  or  from  the  pleadings  and  record,  and  not  from  the 
memory  of  witnesses  testifying  ex  parte,   (v) 

Amendinents  before  judgment. — The  provisions  of  the 
practice-act  (1872),  in  this  regard,  are  as  follows: 

"At  any  time  before  final  judgment  in  a  civil  suit, 
amendments  may  be  allowed  on  such  terms  as  are  just  and 
reasonable,  introducing  any  party  necessary  to  be  joined  as 
plaintiff  or  defendant,  discontinuing  as  to  any  joint  plaint- 
iff or  joint  defendant,  changing  the  form  of  the  action,  and 
in  any  matter,  either  of  form  or  substance,  in  any  process, 
pleading  or  proceeding  which  may  enable  the  plaintiff  to 
sustain  the  action  for  the  claim  for  which  it  was  intended, 
to  be  brought,  or  the  defendant  to  make  a  legal  defense. 
The  adjudication  of  the  court  allowing  an  amendment  shall 
be  conclusive  evidence  of  the  identit}'  of  the  action,  {x) 

(/)  II  111.  511  ;  18  111.  390.  See  46  111.  34;  62  III.  118;  63  111.  loi. 

{tt)  II  111.  57;  2  Scam.  539;  14  Ind.  3;  15  Ind.  73.  See  13  111.  122;  I 
Scam.  122  ;  3  beam.  93 ;  16  111.  155 ;  87  111.  185  ;  82  111.  614 ;  59  III.  72. 

(«)  II  111.  116.  See  18  111.  390;  I  BradweU,  188;  55  111.  303;  59  111.  72; 
67  111.  536;  17  Bradw.  30;  121  111.  255. 

(?')  18  111.  390.  See  36  111.  114;  89  III.  596. 

(jr)  2  Starr  &  Curtis'  An.  Stat.  1787;  Rev.  Stat.  (1S77)  737  ;  72  111.  521  ;  76 
III.  445;  77  III.  22,  301;  78  HI.  353;  79  111.  361,  449;  86  111.  560,  577;  90 
11.359;  108111.91,514;  107  111.  235;  114  111.  533;  iS  Bradw.  573;  112  111. 
311;   119  II'.  352;   20  Bradw.  373. 

49 


768  AMENDMENTS. 

Statutes — Amendment  of  pleadings,  and  process,  out  of  term. 

"  In  case  another  defendant  is  added,  summons  may 
issue  against  such  defendant,  returnable  to  the  next  term 
of  court,  and  he  may  be  proceeded  against  in  the  same 
manner  as  if  he  had  been  made  a  defendant  at  the  com- 
mencement of  tlie  suit. 

"  No  amendment  shall  be  cause  for  a  continuance  unless 
the  party  affected  thereby,  or  his  agent  or  attorney,  shall 
make  affidavit  that  in  consequence  thereof  he  is  unprepared 
to  proceed  to  or  with  the  trial  of  the  cause  at  that  tern^, 
stating  in  such  affidavit  what  particular  fact  or  facts  the 
party  expects  to  prove  by  such  evidence,  and  that  he  verily 
believes  that  if  the  cause  is  contiiuicd  he  will  be  able  to 
procure  the  same  by  the  next  term  of  the  court :  Provided, 
that  if  the  court  is  satisfied  that  such  evidence  would 
not  be  material  on  the  trial  of  the  cause,  or  if  the  other 
party  will  admit  the  affidavit  in  evidence,  subject  to  tbe 
effect  given  to  affidavits  for  a  continuance  *  *  'H^  the 
cause  shall  not  be  continued."  (.v) 

Aincndiucut  of  pleadings  in  vacation. — B}--  the  **  act  to 
extend  the  powers  of  judges  of  circuit  courts  in  vacation," 
(1872,)  the  judges,  within  their  respective  circuits,  have 
power  in  vacation  to  permit  amendments  of  pleadings  ;  and 
this  may  be  done  during  a  term  of  court  held  in  another 
county  than  that  in  wdiich  the  suit  is  pending.  The  party 
applying  must  give  at  least  seven  daj^s'  notice  to  the  oppo- 
site part}',  or  his  attorney  of  record.  Any  order  made  in 
pursuance  of  such  application  must  be  signed  by  the  judge, 
and  filed  and  entered  of  record  by  the  clerk  of  the  court  in 
which  the  proceedings  are  had,  and  will  take  effect  from 
the  date  of  such  fihng.  {y) 

Amendment  of  froccss  otit  of  term, — The  practice-act 
prorides,  that  "a  party  intending  to  move,  out  of  term,  to 
set  aside  or  quash  any  execution,  replevin-bond,  or  other 


(x)   Rev.  Stat.   (1877)  737;  78  111.  442;  76  111.  204.  381  ;  75 
\y)   I  Starr  &  Curtis'  An.  Stat.  710;    Rev.  Stat.  (1S77)  327; 


111.  45- 
97  !"•  147. 


AMENDMENTS.  76^ 


Statutes — Errors  in  fact,  after  judgment. 

proceedings,"  may  obtain  a  certificate  from  the  judge,  stay- 
ing further  proceedings,  etc.  "But  in  no  case  shall  the 
judge  grant  such  certificate  when  the  error  complained  of 
may,  by  the  direction  of  the  judge  to  the  clerk  issuing  the 
process,  be  corrected,  but  the  judge  shall  order  the  cor- 
rection, and  the  clerk  shall  make  the  correction  in  the  pro- 
cess as  if  ordered  in  term-time."  {z) 

'  Correction  of  errors  in  fad,  after  judgment. — The 
practice-act  also  provides  as  follows  :  "  The  writ  of  error 
coram  nobis  is  hereby  abolished,  and  all  errors  in  fiict  com- 
mitted in  the  proceedings  of  any  court  of  record,  and  which 
by  the  common  law  could  have  been  corrected  by  said  writ, 
may  be  corrected  by  the  court  in  which  the  error  was  com- 
mitted, upon  motion  in  writing  made  at  any  time  within 
five  3ears  after  the  rendition  of  final  judgment  in  the  case, 
upon  reasonable  notice.  When  the  person  entitled  to  make 
such  motion  shall  be  an  infant,  feme  covert,  non  compos 
vientis,  or  under  duress,  at  the  time  of  passing  judgment, 
the  time  of  such  disability  shall  be  excluded  from  the  com- 
putation of  said  five  years."  {a) 

Other  statutory  provisions. — There  are  various  other 
provisions  in  the  statutes,  concerning  amendments  in  par- 
ticular cases  ;  as  for. filing  a  sufficient  affidavit  or  bond,  or 
amending  the  writ,  in  proceedings  by  attachment;  {b)  for 
supplying  a  sufficient  bond,  on  appeal  to  the  Supreme 
Court ;  (c)  for  amending  awards  ;  {d)  and  for  amending 
appeal-bonds,  on  appeals  from  justices  of  the  peace.  ((?) 

(z)   Rev.  Stat.  (1877)  742.     See  36  111.  406;  43  111.  209. 

{a)  2  Starr  &  Curtis'  An.  Stat,  183I;  Rev,  Stat.  (1S77)  742;  75  111,  232;  77 
111,  284;  78  111.  339;  67  111.  536;   102  111.  315;  21  Ill.App.  Ct.  113. 

{/))  Rev.  Stat.  (1877)  151 ;   2  Scam,  462;   I  Scam.  551  ;  71  III.  46, 

\c)   Rev,  Stat,  (1877)  743,     See  13  111.  705;  2  Bradw.  481. 

{d)  I  Starr  &  Curtis'  An.  Stat.  304;  Rev.  Stat.  (1S77)  142;  26  III.  460;  25 
111.  522. 

{e)  Rev.  Stat.  (1877)  61S,  See  I  Scam,  289,  321,  467;  12  111.  77;  2  Scam. 
65,  473;  20  111.  161  ;  21  111,  127;  39  I;l.  507 ;  47  III.  365. 


770  AMENDMENTS. 


Statutes. 


By  section  6i  of  the  practice-act  (1872),  exceptions  may- 
be taken  to  decisions  of  the  court  in  overruling  motions  to 
amend;  and  any  decision  so  excepted  to  may  be  assigned 
fcr  error.  {/) 

Leave  to  amend  pleadings  necessary  to  present  an  issue  on 
ihe  merits  of  a  cause,  is  no  longer  discretionary  with  the 
court,  but  is  a  legal  right  of  the  party,  and  when  proper  ap- 
plication is  made  for  leave  to  amend  pleas,  on  sustaining  a 
demurrer  thereto,  the  court  has  no  right  to  require  the  de- 
fendant to  show  by  an  affidavit  of  facts,  in  detail,  a  meritori- 
ous defense  to  plaintiff's  action.  Such  terms  cannot  be  im- 
posed as  a  condition  of  amending  pleas,  under  the  statute 
authorizing  amendments.  (^) 

CJiangiiig  cause  from  laiv  to  chancery. — Courts  of  chancery 
and  courts  of  law  are,  in  this  state,  distinct  tribunals.  Though 
they  may  be  presided  over  by  the  same  judge  they  possess 
separate  and  distinct  jurisdiction.  Therefore,  it  would  be  im- 
proper to  change  an  action  at  law  to  a  suit  in  chancery.   (//) 

yudgments  after  term. — Where  a  judgment  has  been 
madvertently  entered  for  the  plaintiff  instead  of  for  the  defend- 
ant, an  amendment  may  be  allowed,  upon  motion  even  after 
the  expiration  of  the  term,  nunc  pro  tunc,  (i) 

(/)  2  Starr  &  Curtis'  An.  Stat.  1826;  Rev.  Stat.  (1S77)  742. 

{(/)  I  Bradw.  39I  ;  83  III.  526;  84  111.  18;  78  III.  505;  loS  111.  91. 

{/i)  18  Bradw.  573. 

(?)  21  111.  App,  Ct.  113;  17  Bradw.   30;  Freeman  on  Judgments,  Sec.  70. 


EVIDENCE.  771 


Documents,  etc. 


CHAPTER  XXIV. 


EVIDENCE. 


The  mode  of  procuring  the  evidence  that  may  be  used 
in  the  trial  of  a  cause,  is  a  subject  deserving  attention  in  a 
work  on  practice.  For  this  purpose,  the  various  kinds  of 
evidence  may  be  considered  under  these  three  heads,  viz  : 
Documentary  evidence;  Oral  testimony  of  witnesses;  and 
Depositions. 

Documentary  Evidence. — If  documents,  such  as  stat- 
utes, pubhc  or  private,  records  ofany  courts,  judgments, etc., 
are  required  in  the  course  of  a  trial,  the  party  needing  them 
must  procure  the  originals,  if  necessarjs  at  their  place  of 
deposit,  or  copies,  when  the}'-  are  admissible,  duly  authen- 
ticated according  to  the  laws  of  evidence  in  the  various 
cases. 

If  deeds  or  other  writings,  or  books  of  account,  or  pri- 
vate papers  of  any  sort,  are  required,  the  party,  if  they  are 
controlled  by  his  adversary,  must  give  him,  his  agent  or 
attorney,  written  notice  to  produce  them  at  the  trial.  There 
is  no  particular  form  of  this  notice  i  but  a  copy  of  it  should 
be  kept,  attested  to  be  a  true  one  by  the  person  who  de- 
livers the  original.  If  the  party  who  has  an  instrument 
required  as  evidence,  does  not  produce  it,  the  other,  upon 
proving  service  of  the  notice,  will  be  permitted  to  prove  the 
contents  of  the  instrument  by  a  copy,  or  other  secondary 
evidence,  in  the  same  manner  as  if  it  had  been  destroyed 
or  lost,     {a)     The  notice  should  be  served  seasonably,  in 

[a)  I  Starr  &  Curtis' An.  Stat.   1080.     See   Rev.    Stat.    (1S77)   477;  34   III. 
190;  4S  111.  494.;  9  iJraJw.  479;  Si  111.  72;   nS  111.  465  ;   lij  iJraJw.   1^7. 


772 


EVIDENCE. 


Notice  to  produce  instrument. 


order  to  give  the  party  reasonable  time  to  produce  the 
original. 

If  the  instrument  is  produced,  the  party  giving  the  no- 
tice to  produce  it  may  introduce  it  in  evidence  or  not,  a? 
he  ma}'^  choose,  (d)  But  if  introduced,  its  execution  must 
be  proved,  in  like  manner  as  if  no  notice  had  been  given, 
etc.  (c)  If  however  the  party  who  produces  the  instru- 
ment under  the  notice  is  a  party  to  it,  and  claims  a  bene- 
ficial interest  under  it,  the  party  calling  for  the  instrument 
need  not  prove  its  execution,  (d)  And  whether  the  party 
producing  it,  on  notice,  claims  a  beneficial  interest  under  it 
or  not,  its  genuineness  need  not  be  proved,  (c) 

Public  records  are  not  within  the  rule  in  regard  to  the 
production  of  paper  evidence  under  the  control  of  the  op- 
posite party.  Courts  have  the  power  to  compel  the  custo- 
dians of  records  and  public  documents  to  produce  them; 
but  where  the  exercise  of  this  power  is  not  necessary — as 
where  certified  copies  could  be  obtained  and  used — a  court 
may  properly  refuse  to  require  the  production  of  the  origi- 
nals.  (/) 

The  notice  to  the  opposite  party,  to  produce  a  written 
instrument,  may  be  in  the  follovving  form  : 

JVb.  338.    Notice  to  produce  writtcji  instrument  on  trial. 


In  the 


Court. 


A.  B.  ^ 

vs.     >  Covenant. 
CD.) 

To  the  above-named  C.  D.,  defendant : 

You  will  please  produce,  on  the  trial  of  this  cause,  a  cer- 
tain {here  describe  the  instrument,  with  such  particularity 
as  to  affrise  the,  ^arty  of  what  is  required).     Otherwise 


{V)  3  Wash.  Cir.  Ct.  Rep.  48:!. 
(c)  3  Camp.  94;  8  East,  54S,  549;  l  Arch.  109. 

(rf)  3  Taunt.  62;  7  Eng.  Com.  Law  Rep.  382;  12  Johns.  323;  17  Johns. 
158;  12  Eng.  Cora.  Law  Rep.  327;  13  id.  99. 
(«;)  7  Wend.  216. 
(/)  55  111-  357- 


EVIDENCE.  773 


Witnesses,  etc. 


the  -plaintiff  will  offer  secondary  evidence  of  the  contents 
of  the  said  instrument. 
{Daie.^ 

E.  F.,  Attorney  for  Plaintiff. 

Where  notice  was  given  the  day  before  a  trial,  to  pro- 
duce a  paper  which  was  eighty  miles  distant,  in  the  hands 
of  another  person,  it  was  held  that  the  court  could  not  take 
judicial  notice  that  the  paper  could  not  have  been  obtained, 
and  exclude  secondary  evidence,  {g) 

If  a  person  who  is  not  a  party  to  the  cause  has  in  his  pos- 
session an}''  written  instrument,  etc.,  which  a  party  desires 
to  use  in  evidence,  a  siihpccna  duces  tecum  should  be  served 
upon  him,  commanding  him  to  bring  with  him  and  produce 
at  the  trial  the  instrument  named.  This  siihpcena  may  be 
framed  from  the  common  one,  by  adding  the  command  to 
bring  the  required  instrument. 

Oral,  testimony  of  witnesses. — The  attendance  of 
witnesses  at  a  trial  is  compelled  b}'  a  subpccna,  which  is  a 
judicial  v,rit  directed  to  the  witnesses,  commanding  them 
to  appear  before  the  court,  at  the  time  therein  specified,  to 
give  their  evidence  in  the  cause  named  in  the  writ.  In 
Illinois,  the  writ  is  generally  directed  to  the  sheriff.  It  is 
usual  for  the  party  desiring  the  attendance  of  witnesses,  to 
file  with  the  clerk  of  the  court  a  preecipc,  which  may  be  in 
tiie  following  form  : 

In  the Court. 

A.  B.  ^ 

vs.      >  A  ss  u  mps  it . 
C.   D.  }      The  clerk  of  the  said  court  will  issue  a  stih- 
porna  for  J.  K.  and  L.  INI.,  as  witnesses  for  the  plaintiff,  in 
this  cause,  to  appear  on,  etc.  ;  and  direct  the  same  to  the 

sheriff  of  the  county  of to  execute. 

{Date.) 

E.  F.,  Attorney  for  Plaintiff. 

{g)  20  III.  43.     See  28  111.  204. 


774  EVIDENCE. 


Witnesses,  etc. 


There  is  no  time  limited  within  which  a  subpoena  must 
be  served.  It  ought,  of  course,  to  be  served  so  as  to  give 
the  witnesses  a  reaaenable  time  to  come  to  the  place  speci- 
fied, if  they  reside  at  a  distance  ;  but  when  they  are  at 
hand,  the  subpoena  may  be  served  even  after  the  trial  has 
commenced. 

If  the  witnesses  reside  in  another  county  than  that  where 
the  court  is  held,  their  fees  for  travel  and  attendance  must 
be  paid  or  tendered  to  them,  on  service  of  the  subpceiia,  or 
they  can  not  be  proceeded  against  for  not  appearing. 

If  a  witness  who  has  been  regularly  summoned,  (and 
whose  fees  have  been  tendered  to  him,  where  required,) 
neglects  or  refuses  to  attend  and  testify,  as  commanded  by 
the  writ,  the  court  will,  on  motion,  order  an  attachment  to 
be  issued  against  him  for  contempt,  and  impose  such  fine 
upon  him  as  the  court  ma}'^  deem  just  and  proper,  and  order 
him  to  pay  the  costs  of  such  attachment ;  and  such  witness 
is  furtlier  liable  to  the  action  of  the  aggrieved  party,  for  all 
damages  by  him  sustained  by  the  default.  If  a  witness  is 
in  custody  at  the  time  of  the  trial,  the  only  way  of  bring- 
ing him  into  court  to  give  evidence,  is  by  a  writ  of  habeas 
corpus  ad  tcstijicandum.  This  writ  can  be  obtained  only 
upon  motion  to  the  court,  and  in  the  English  practice,  the 
application  must  be  accompanied  by  an  affidavit,  showing 
that  the  witness  is  a  material  one  ;  but  this  affidavit  is  not 
always  required  in  practice  in  Illinois.  If  the  motion  is 
allowed,  the  writ  is  made  out,  signed  and  directed,  and 
delivered  to  the  officer  in  whose  custody  the  witness  is 
held,  who  will  bring  him  up,  on  being  paid  his  reasonable 
charges.  (^) 

For  a  form  of  petition  for  a  writ  of  habeas  corpus  ad 
testificandum^  see  the  chapter  on  habeas  corpus. 

The  affidavit  which  it  is  necessary  to  make,  in  order  to  ob- 
tain a  continuance  on  account  of  the  absence  of  a  material 
witness,  is  considered  under  the   head  of  Continuances. 


{Ji)  2  Tidd,  724. 


EVIDENCE.  775 


Depositions — Witnesses  in  another  county,  etc. — Affidavit. 
DEPOSITIONS    (in    ILLINOIS). 

Cases  til  ivhieh  they  may  be  taken. — ^When  any  person 
whose  testimony  is  required  in  any  suit  at  law,  pending  in 
any  court  in  the  slate,  is  a  non-resider^t,  or  resides  in  a 
different  county  from  that  in  which  the  court  is  held,  or  is 
about  to  depart  from  the  state,  or  is  in  custody  on  legal 
process,  or  is  unable  to  attend  court  on  account  of  advanced 
age,  sickness,  or  other  bodily  infirmity,  his  deposition  may 
be  taken,  in  the  manner  pointed  out  by  the  statute.  (/) 

Of  witnesses  residing  in  another  county^  injirm  "wit- 
nesses^ etc. — In  all  cases  where  the  witness  resides  in  a 
different  county  from  that  in  which  the  court  is  held,  or  is 
about  to  depart  from  the  state,  or  is  in  custody  on  legal 
process,  or  is  unable  to  attend  court  on  account  of  advanced 
age,  sickness  or  other  bodily  infirmit}-,  the  party  desiring 
his  testimony,  upon  filing  a  proper  affidavit,  may  have  his 
deposition  taken  before  an}'- judge,  justice  of  the  peace,  clerk 
of  a  court,  master  in  chancery,  or  notary  public,  without  a 
commission  or  interrogatories  for  such  purpose,  on  giving 
the  required  notice  to  the  adverse  party.  (_/*) 

The  affidavit  to  be  filed  in  such  case  may  be  as  follows : 


JVb.  339.     Affidavit  to  be  filed  before  talcing  deposition  of 
-witness  residing  in  another  cotcnty,  etc. 

In  the Court. 

A.  B.  ^ 
vs.      >  Asstnn-psit. 

C.  D.  ) 

A.  B.,  the  above-named  _;!'/«/w//^,  makes  oath  and  says, 
that  L.  M-.,  who  is  a  rnaterial  witness  for  this  affiant,  in 
this  cause,  resides  in  the  county  of  — ■. — ,  in  tliis  state 
(or  "  is  about  to  depart  from  this  state,"  or  "is  in  cus- 
tody on  legal  process,"  or  "is  unable  to  attend  the  said 

(»■)   I  Starr  &  Curtis'  An.  Stat.  10S6.     See  Rev.  Stat.  (1S77)  479. 
U)  lb. 


776  EVIDENCE. 


Depositions  of  witnesses  in  another  county,  etc. — Notice. 

court,  on  account  of  advanced  age,"  ctc.^  as  the  case  may 
be) ;  and  that  tiiis  affiant  desires  the  deposition  of  the  said 
G.  H.,  to  be  read  in  evidence  on  the  trial  of  this  cause. 

A.  B. 
Subscribed  and  sworn,  etc. 

Upon  filing  the  affidavit,  a  written  notice  should  be  given 
to  the  adverse  party,  of  the  time  and  place  of  taking  such 
deposition,  which  notice  should  be  served  by  cop}^  The 
statute  requires  the  notice  to  be  given  ten  da3-s  before  the 
time  for  taking  the  deposition,  "  and  one  day  in  addition 
thereto  (Sundays  inclusive)  for  every  fifty  miles'  travel  from 
the  place  of  holding  the  court  to  the  place  where  such  dep- 
osition is  to  be  taken."  The  statute  further  provides,  that 
*'if  the  party  entitled  to  notice  and  his  attorney  reside  in 
the  county  where  the  deposition  is  to  be  taken,  five  day 
notice  shall  be  sufiicient.  {k) 

The  notice  may  be  in  the  following  form : 

JVo.  340.     Notice  to  take  deposition  of  witness  residing  in 
another  county.,  etc. 

Court. 
Assumpsit. 

To  the  above-named  C.  D.,  defendant : 

Take  notice,  that  on,  etc.,  between  the  hours  of  

a.  in.  'and -p.  m.,  at,  etc.,  before  J.  K.,  «  justice  of 

the  peace  of  that  county,  or  some  odier  officer  authorized 
by  law  to  take  depositions  in  such  cases,  the  plaintiff  will 
proceed  to  cause  to  be  taken  the  deposition  of  L.  I\I.,  re- 
siding in  the  said  county  of ,  to  be  read  in  evidence  on 

the  trial  of  this  cause,  on  the  \)iw\.oi  i\\e  plaintiff ;  at  which 
time  and  place  above  mentioned  for  the  taking  of  such 
deposition,  you  can  appear,  and  cross-examine  the  said 
witness,  if  you  shall  see  fit  so  to  do. 

{Bate.) 

E.  F.,  Attorney  for  Plaintiff. 


{/:)   I  Starr  &  Curtis'  An,  Stat.  10S5  ;   Rev.  Stat.  (1S77)  479. 


EVIDENCE.  777 


Depositions  of  witnesses  in  another  countj,  etc. 


At  tb*!:  time  and  place  appointed  in  the  notice,  the  party 
at  whDse  instance  the  deposition  is  taken,  and  the  adverse 
party,  if  he  sees  fit,  or  their  attorneys,  together  with  the 
deponent,  go  betbre  the  officer  who  is  to  take  the  deposi- 
tion. The  deponent  is  then  duly  sworn,  and  the  party  who 
caused  him  to  be  summoned  first  examines  him,  and  the 
opposite  part}',  if  present,  then  cross-examines  him.  The 
questions  of  each  party,  the  deponent's  answers  to  them, 
and  the  objections  which  either  party  may  make!  to  any 
questions  or  answers,  are  written  down  in  their  order ;  and 
when  the  examination  on  both  sides  is  concluded,  and  the 
result  reduced  to  writing,  and  read  over  to  the  deponent, 
he  signs  his  name  at  the  foot  of  the  deposition. 

The  general  directions  for  taking  depositions  by  commis- 
sioners are  applicable  in  some  respects  to  cases  of  this  kind. 

Any  officer  or  commissioner  may  issue  a  suhfoeva,  if 
necessary,  to  compel  the  attendance  of  any  witness  whose 
deposition  he  may  be  required  to  take.  (/) 

If  a  part}'  gives  notice  of  the  taking  of  two  depositions, 
in  ditTerent  places,  on  the  same  day,  so  tliat  the  opposite 
party  can  not  be  present  to  cross-examine  both  the  witnesses, 
he  may  elect  which  examination  he  will  attend,  and  the 
other  depositions  will  be  suppressed,  {ni) 

An  appearance,  and  cross-examination  of  the  witness, 
will  be  deemed  a  waiver  of  objection  to  the  sufficiency  of 
the  notice  ;  {li)  and  where  a  party  consents  to  the  taking  of 
a  deposition,  it  may  be  read  in  evidence,  although  no  affi- 
davit was  filed,  as  required  by  the  statute.  {6) 

It  is  not  irregular  to  take  the  deposition  of  a  witness  in  a 
county  other  than  that  in  which  he  resides.  He  may  not 
be  bound  to  attend,  but  if  he  does,  it  is  regular,  {f) 

(/)   I  Starr  &  Curtis'  An.  Stat.  1090;   Rev.  Stat.  (1S77)  4S1. 

(m)  25  111.  572. 

(«)  12  111.  267.     See  37  111.  1S6;  20  Eradw.  525. 

{0)  38  111.  40. 

(/)  41  111.  413. 


773  EVIDENCE. 


Depositions  of  non-resident  witnesses,  etc. 


0/  witnesses  residing  in  the  state,  more  than  lOO  miles 
distant;  non-resident  witnesses;  and  witnesses  in  military 
or  naval  service. — The  statute  (sec.  26  of  the  evidence  and 
depositionsact)  provides  as  follows  ;  "  When  the  testimony 
of  any  witness  residing  within  this  state,  more  than  one 
hundred  miles  from  the  place  of  holding  the  court,  or  not 
residing  in  this  state,  or  who  is  engaged  in  the  military  or 
naval  service  of  this  state  or  of  the  United  States,  and  is 
out  of  this  state,  shall  be  necessary  in  any  civil  cause  pend- 
ing in  any  court  of  law  or  equity  in  this  state,  it  shall  be 
lawful  for  the  party  wishing  to  use  the  same,  on  giving  to 
the  adverse  party,  or  his  attorney,  ten  days'  previous  notice, 
together  with  a  copy  of  the  interrogatories  intended  to  be  put 
to  such  witness,  to  sue  out  from  the  proper  clerk's  office  a 
dedinms  ^otestatcm  or  commission,  under  the  seal  of  the 
court,  directed  to  any  competent  and  disinterested  person  as 
commissioner,  or  to  any  judge,  master  in  chancery,  notary 
public  or  justice  of  the  peace  of  the  county  or  city  in  which 
such  witness  may  reside,  or  in  case  it  is  to  take  the  testi- 
mony of  a  person  engaged  in  such  military  service,  '  to  any 
commissioned  officer  in  the  military  or  naval  service  of  this 
state  or  the  United  States,'  authorizing  and  requiring  him 
to  cause  such  witness  to  come  before  him,  at  such  time  and 
place  as  he  may  designate  and  appoint,  and  faithfully  to 
take  his  deposition  upon  all  such  interrogatories  as  may  be 
inclosed  with  or  attached  to  said  commission,  both  on  the 
part  of  the  plaintiff  and  defendant,  and  none  others ;  and 
to  certif}^  the  same,  when  thus  taken,  together  with  the  said 
commission  and  interrogatories,  into  the  court  in  which  such 
cause  shall  be  pending,  with  the  least  possible  delay."  {q) 

The  statute  must  be  substantially  complied  with,  and  no 
material  deviation  therefrom  will  be  allowed,  unless  by 
consent  or  waiver  of  the  parties  to  the  suit,  (r) 

(^q)  I  Starr  &  Curtis*  An.  Stat.  lo86;  Rev.  Stat.  (1S77)  479-     f>ee  79  Til.  575. 
[r)  30  111.  95.     See  12  111.  267;  3  beam.  453;  3  Gilm.  227;  75  111.  367. 


EVIDENCE.  779 


Depositions  of  non-r«sidents,  etc. — Notice,  etc- 


The  notices  and  formal  interrogatories,  to  be  used  in 
such  cases,  may  be  as  follows  : 

No.  341.     Notice  and  intn'rogatories  for  taking  deposi- 
tion Jtpon  interrogatories  in  luriting. 

Court  of  the  County  of ,  in  the  State  of 


Assu7n'psit. 

To  the  above-named  C.  D.,  defendant : 

Take  notice,  that  on,  etc.,  the  flaintif  \\\\\  sue  out  from 
the  clerk's  office  of  the  said  court  a  commission,  pursuant 
to  the  statute,  to  take  the  deposition  of  L.  M.,  residing  in 

the  city  of ',  in  the  count}^  of and  state  of ,  to 

be  read  in  evidence  on  the  part  oi\h^  -plaintiff,  on  the  trial 
of  this  cause.  The  interrogatories  to  be  propounded  to  the 
said  L.  M.  in  this  behalf,  on  the  part  of  the  -plaintiff,  are 
hereto  subjoined  ;  and  you  can  file  cross-interrogatories,  and 
join  in  such  commission,  if  you  shall  see  lit  so  to  do. 

{Date.) 

E.  F.,  Attorney  for  Plaintiff. 

-  Court  of  the  County  of ,  in  the  State  of 


Assumpsit. 

Interrogatories  to  be  propounded  to  L.  M.,  a 
witness  to  be  produced,  sworn  and  examined  in  this  behalf, 
on  the  part  of  the  plaintiff,  by  virtue  of  the  commission  to 
be  issued  in  pursuance  of  the  foregoing  notice  : 

Interrogatory  i.  What  is  your  name,  age,  occupation, 
and  place  of  residence  ? 

Int.  2.  Do  you  know  the  parties  plaintiff  and  defendant 
in  this  cause,  or  either  of  them?  If  yea,  how  long  have 
you  known  them  respectively  ? 

{Proceed  ivith  the  interrogatories — nuuihering  them  con- 
secutively— touching  the  matters  desired  to  be  proved.) 

Lastly.  Do  you  know  of  any  other  matter  or  thing,  of 
benefit  or  advantage  to  the  plaintiff,  touching  the  matters 
in  controversy  in  this  cause,  in  addition  to  what  you  have 
already  stated?  If  yea,  state  the  same  as  fully  as  if  thereto 
particularly  interrogated. 

E.  F.,  Attorney  for  Plaintiff. 


78o 


EVIDENCE. 


Depositions  of  non-residents,  on  oral  interrogatories. 

It  is  usual  to  name  the  commissioner  in  the  notice ;  but 
in  the  case  of  Cole  v.  Chouteau,  i8  111.  439,  the  court  said  ; 
*'  The  statute  here  does  not  authorize  the  party  to  appoint 
the  commissioner,  consequently  he  could  not  give  his  name 
in  the  notice  to  sue  out  the  dcdimus.  It*s  not  required  by 
the  statute,  for  the  clerk  might  appoint  some  other  than  the 
one  so  nominated  in  the  notice." 

In  a  suit  against  two  joint-debtors,  a  notice  to  one  of 
them,  of  the  issuing  of  a  commission  to  take  depositions,  is 
insufficient,  and  the  deposition  can  not  be  used  against  him 
who  was  not  served  with  notice.  (5) 

The  usual  mode  of  serving  a  notice  of  suing  out  a  com^ 
mission,  is  to  deliver  a  copy  of  the  notice  and  interrogato- 
ries to  the  opposite  party,  or  his  attorney,  who  will  gener- 
ally acknowledge  the  receipt  of  the  same  on  the  back  of  the 
original.  If  this  is  not  done,  an  affidavit  of  service  should 
be  attached.  The  service  must  be  at  least  ten  days  before 
the  issuing  of  the  commission.  (/) 


0/  non-resident  zu/'tnesses,  ufon  oral  interrogatories. — 
The  statute  provides,  in  this  regard,  as  follows  :  "When  a 
party  shall  desire  to  take  the  evidence  of  a  non-resident  wit- 
ness, to  be  used  in  any  cause  pending  in  this  state,  the 
party  desiring  the  same,  or  where  notice  shall  have  been 
given  that  a  commission  to  take  the  testimony  of  a  non- 
resident witness  will  be  applied  for,  the  opposite  party,  upon 
giving  the  other  three  days'  notice  in  writing  of  his  elec- 
tion so  to  do,  may  have  a  commission,  directed  in  the  same 
manner  as  provided  in  section  26  of  this  act,  to  take  such 
evidence,  upon  interrogatories  to  be  propounded  to  the  wit- 
ness orally  ;  upon  the  taking  of  which  each  party  may  ap- 
pear before  the  commissioner,  in  person  or  by  attorney,  and 
interrogate  the  witness.  The  party  desiring  such  testimony 
shall  give  to  the  other  the  following  notice  of  the  time  and 

(5)  2  Gilm.  707. 
{t\  30  111.  95. 


EVIDENCE.  781 


Notice  by  mail,  etc.^Instructions,  etc,  for  taking  depositions. 

place  of  taking  the  same,  to  wit,  ten  days,  and  one  day  in 
addition  thereto  (Sundays  included)  for  every  one  hundred 
miles'  travel  from  the  place  of  holding  the  court  to  'the 
place  where  such  deposition  is  to  be  taken."  {it) 

Notice  by  mail^  or  by  advert isenicnt. — With  respect  to 
notice  where  personal  service  can  not  be  had,  the  statute 
provides  as  follows:  "When  the  deposition  of  any  witness 
is  desired  to  be  taken  under  the  provisions  of  this  act,  and 
the  adverse  party  is  not  a  resident  of  the  county  in  which 
the  suit  is  pending,  or  is  in  default,  and  no  attorne}''  has 
appeared  for  him  in  such  cause,  upon  filing  an  affidavit  of 
such  fact,  and  stating  the  place  of  residence  of  such  ad- 
verse party,  if  known,  or  that  upon  diligent  inquiry  his 
place  of  residence  can  not  be  ascertained,  the  notice  re- 
quired by  this  act  may  be  given  by  sending  a  copy  thereof 
by  mail,  postage  paid,  addressed  to  such  party  at  his  place 
of  residence,  if  known,  or  if  not  known,  by  posting  a  copy 
of  such  notice  at  the  door  of  the  court-house  where  the  suit 
is  pending,  or  publishing  the  same  in  the  nearest  news- 
paper, and  when  interrogatories  are  required,  filing  a  copy 
thereof  with  the  clerk  of  the  court  ten  da3^s  before  the  time 
of  suing  out  such  commission."  {y) 

Tnstrtictions,  etc.,  for  talcing  depositions. — Where  a 
deposition  is  to  be  taken  under  a  commission,  the  following 
instructions  and  forms  for  the  taking,  certifying  and  re- 
turning of  depositions,  according  to  the  laws  of  Illinois, 
may  be  inclosed  with  the  commission  : 

No.  342.      Captio7i  of  the  deposition. 

The  deposition  of  L.  M.,  of  the  city  of ,  in  the  county 

of  and  state  of  ,  a  witness  of  lawful  age,  pro- 
duced, sworn,  and  examined  upon  his  oath,  on,  etc.,  at  my 
office  in,  etc.,  by  me,  J.  K.,  a  commissioner  duly  appointed 

{ti)  I  Starr  &  Curtis'  An.  Stat,  10S7 ;  Rev.  Stat.  (1877)  479. 
(f)   lb. ;  lb. 


782  EVIDENCE. 


Instructions,  etc.,  for  taking  depositions. 


by  the  annexed  commission,  issued  out  of  the  clerk's  office 
of  the Court  of  the  county  of ,  in  the  state  of  Illi- 
nois, under  the  seal  of  the  said  court,  and  to  me  directed, 
as  such  commissioner,  for  the  examination  of  the  said  L#. 
M.,  a  witness  in  a  certain  suit  now  pending  in  the  said 
court,  wherein  A.  B.  is  plaintiff,  and  C.  D.  is  c|efendant, 
on  behalf  of  the  plaintiff,  as  well  upon  the  interrogatories 
of  the  -plaintiff  as  upon  the  cross-interrogatories  of  the  dc- 
Jcndant^  whicli  we're  attached  to  the  said  commission,  and 
upon  none  others.  Tlie  said  L.  M.,  being  first  duly  sworn 
by  me,  as  a  witness  in  the  said  cause,  before  the  commence- 
ment of  his  examination,  to  testify  the  truth  as  well  on  t|ie 
part  of  the  plaintiff  as  the  defendant,  in  relation  to  the  mat- 
ters in  controversy  between  the  said  parties,  so  far  as  he 
should  be  interrogated,  testified  as  follows : 

Interrogatory  i.     {Here  insert  the  first  interrogatory i) 
Answer.     {Here  insert  the  answer — and  so  on  succes- 
sively, in  the  order  in  which  the  interrogatories  may  be 
-pro-pounded  and  answered.      Then  follow  i) 

Cross-interrogatories  on  the  part  of  the  defendant,  and 
answers  thereto  by  the  said  L.  M.  {Here  zurite  down  the 
cross-interrogatories  and  answers  successively.) 

(After  the  deposition  is  taken,  the  interrocjatories  and  answers  should  be  read  over  to  the 
witness;  and  if  lie  assents  to  the  tnith  of  the  answers  as  written  down,  he  will  then  si^ 
his  name  at  the  bottom  of  the  deposition,  and  swear  to  the  truth  of  it  before  the  commis- 
Bioner.  This  oath  is  in  addition  to  the  preliminary  oath,  which  is  administere«^  before  the 
commencement  of  his  examination. 

The  commissioner  should  then  certify  as  to  the  time,  place,  and  manner  of  taking  the 
deposition,  as  follows:) 

JVo.  343.      Certificate. 

I,  the  above-named  J.  K.,  of,  etc.,  a  commissioner  duly 
appointed,  by  the  annexed  commission,  to  take  the  depo- 
sition of -the  said  L#.  M.,  the  witness  whose  name  is  sub- 
scribed to  the  foregoing  deposition,  do  certif^s  that  before 
the  commencenient  of  his  examination  as  a  witness  in  the 
said  suit  between  the  said  A.  B.,  plaintiff,  and  the  said 
C.  D.,  defendant,  he  the  said  L.  M.  was  duly  sworn  by 
me,  to  testify  the  truth  in  relation  to  the  matters  in  contro- 
versy between  the  said  parties,  so  far  as  he  the  said  L.  M. 
should  be  interrosfated  concerning  the  same  ;  that  the  said 
deposition  was  taken  at  my  office,  in,  etc.,  on,  etc.  ;  and] 
tljat  after  the  said  deposition  was  taken  by  me,  as  aforesaid, 


EVIDENCE.  783 


Instructions,  etc.,  for  taking  depositions. 


the  interrogatories  and  cross-interrogatories,  and  the  an- 
swers thereto,  as  written  down,  were  read  over  to  the  said 
L.  M.  ;  and  that  thereupon  the  said  deposition  was  signed 
and  sworn  to  by  the  said  L.  M.,  before  me,  at  the  place 
and  on  the  day  last  aforesaid. 

J.  K.,  Commissioner. 


(The  foreg-oing-  certificate  should  be  at  the  foot  of  the  deposition,  immediately  following 
the  signature  of  the  ■witness. 

The  commissioner  should  then  fold  up  the  deposition,  tos^ether  with  the  commission  and 
interroo^.atories,  and  all  exhibits,  if  any,  properly  marked  or  lettered,  as  "  exhibit  A,"  "ex- 
hibit B,"  etc.,  and  enclose  the  whole  in  a  suitable  envelope ;  and  then  seal  up  the  same 
securely  with  three  seals,  writing  his  name  across  the  middle  seal.  The  commissioner  will 
also  indorse  the  names  of  the  parties  to  the  suit,  across  one  end  of  the  package,  accord! no-  to 
the  proper  title  of  the  suit,  and  direct  the  package  to  the  clerk  who  may  have  issued  the 
commission,  and  transmit  the  same  by  mail  to  the  proper  post-office.  No  party,  attorney, 
or  agent,  or  any  person  at  all  interested  in  the  event  of  the  suit,  is  permitted  to  dictate, 
write  or  dra^v  up  any  part  of  the  deposition,  or — when  taken  upon  written  interrogatories — 
to  be  present  during  the  taking  of  the  same.  {~v) 

One  caption  will  answer  for  the  depositions  of  several  witnesses,  where  they  are  all  taken 
at  the  same  time  and  place,  to  be  read  in  the  same  suit,  by  modifying  the  form  here  given — 
for  instance,  as  follows:) 

The  depositions  of  E.  F.,  G.  H.,  and  L.  M.,  of,  etc., 
witnesses  of  lawful  age,  produced,  sworn,  and  examined 
on  their  respective  oaths,  etc.  [In  the  latter  part  of  the 
caption  say:)  The  said  E.  F.,  G.  H.,  and  L.  M.,  beino- 
first  duly  sworn  by  me,  as  witnesses  in  the  said  cause,  etc. 
{Then,  at  the  commencement  of  each  deposition,  say:)  In- 
terrogatories propounded  to  the  said  E.  F.,  a  witness  pro- 
duced and  sworn  as  aforesaid,  on  the  part  of  the  plaintiff, 
and  the  answers  of  the  said  E.  F.  thereto,  as  follows  : 

Interrogatory  i.     {Here  insert  the  interrogatory.) 

Answer.     {IJere  insert  the  anszuer.) 

(And  so  on  successively  with  all  the  interrogatories  to  be  propounded  to  that  witness. 
Then  insert  the  cross-interrogatories,  as  directed.  The  deposition  should  then  be  read  over 
to  the  witness,  and  signed  and  sworn  to  by  him  before  the  next  witness  is  examined. 
Then  proceed  with  the  second  and  third  witnesses,  in  like  manner,  to  the  end. 

One  certificate  as  to  the  time,  jilace  and  manner  of  taking  such  depositions,  and  th.it  they 
were  signed  and  sworn  to  by  such  witnesses,  respectively,  will  be  sufficient,  provided  due 
care  is  taken  to  insert  the  names  of  all  the  witnesses,  and  the  certificate  is  in  other  respects 
in  conformity  with  the  form  given  in  the  first  instance.) 

When  the  deposition  is  taken  by  a  justice  of  the  peace, 
notary  public,  or  other  officer,  as  such,  he  should  so  de- 
scribe himself  in  the  caption  and  certificate,  and  not  aa 

(:.:')  I  Starr  &  Curtis'  An.  Stat.  10S9;  Rev.  Stat.  (1S77)  4C0.  See  l  Scam.  514. 
50 


78q  EVIDENCE. 


Depositions — Remarks. 


comuiissioner ;  and  if  so  taken  in  another  state,  his  return 
must  be  accompanied  by  a  certificate  of  his  official  charac- 
ter, under  the  great  seal  of  the  state,  or  imder  the  seal  of 
the  proper  court  of  record  of  the  county  or  city  where  the 
deposition  is  taken,  (x)  • 

Interi'ogatories  accompanying  a  commission  to  take  a 
deposition  need  not  be  copied  into  the  deposition.  It  is 
sufficient  if  they  were  propounded  to  the  witness,  answered 
by  him,  and  so  referred  to  that  the  court  can  see  the  depo- 
sition was  fairly  taken,  (y) 

A  deposition  will  be  sufficient,  if  it  shows  that  the  wit- 
nesses were  sworn,  although  it  may  not  appear  in  the  right 
place,  or  be  set  out  in  the  certificate,  which  ought  to  come 
at  the  close  of  the  deposition,  (z) 

The  indorsement  of  the  names  of  the  parties  litigant  is 
directed  by  the  statute,  on  the  return  of  depositions ;  but 
an  omission  thereof,  unless  injury  arises  from  the  neglect, 
will  not  be  fatal,  (a)  It  seems  that  where  the  names  of 
partnerships  are  indorsed  as  parties  litigant,  it  is  a  substan- 
tial compliance  with  the  statute,  (d) 

It  is  a  valid  objection  to  a  deposition,  that  it  has  been 
dictated  or  drawn  up  by  an  attorney  in  the  cause;  but  the 
objection  must  be  supported  by  proof  of  the  fact,  (c) 

Where  a  dcdimus  was  directed  to  a  commissioner  to  take 
the  testimony  of  "  Seymour  Rank,"  and  the  deposition  re- 
turned was  that  of  "  Seigmond  Rank,"  the  variance  was 
held  to  be  fatal,  {d) 

Objections  to  the  form  of  depositions  should  be  made 
before  trial,  but  objections  to  their  substance  may  be  made 
at  the  trial.  (<?) 

{x)  See  Rev.  Stat.  {1S77)  480,  2  Scam.  34S;  71  111.  iii;  75  111.  367;  77 
111.  515.    See  79  111.  575;  69  111.  356. 

(7)  3  Gilm.  227. 

\z)   12  111.  267.     See  32  111.  116;  69  111.  356. 

{a)   18  111.  439.     See  66  111.  510. 

(*)  2  Scam.  g. 

(r)   I  Scam.  514:    I  Starr  &  Carti=;'  An,  Stat.  10S9. 

{d)   13  111.  650;  71  111.  Ill  ;  89  111.  43. 

\e)  4  Gilm.  569;  30  III.  373;  45  111.  145;  64  111.  3SS;  So  111.  6o2;  89  III. 
553;  20  Bradw.  525;  105  111.  5CS. 


EVIDENCE.  785 


Depositions — Remarks. 


If  leading  questions  are  propounded  to  a  witness  whose 
deposition  is  being  taken  upon  oral  interrogatories,  an  ob- 
jection to  the  form  of  a  question  must  be  made  and  noted 
at  the  time,  or  such  objection  will  be  waived.  If  however 
the  party  against  whom  the  deposition  is  intended  to  be 
used  is  not  present  when  it  is  taken,  the  rule  will  not  ap- 
ply. {/)  All  objections  to  a  deposition  should  be  taken 
and  disposed  of  before  the  trial.  (^) 

A  party  can  not,  it  seems,  have  the  depositions  taken  for 
his  opponent  suppressed,  for  want  of  full  answers  by  the 
witnesses  to  the  latter's  interrogatories.  {Ji)  But  by  the 
statute,  the  court  may  allow  another  commission  to  issue, 
if  it  appears  that  the  witness  has  not  given  full  or  proper 
answers,  or  that  a  further  examination  ought  to  be  allowed 
to  either  party.  (/) 

Depositions  taken  in  one  suit  may  be  used  in  another, 
between  the  same  parties,  where  the  same  matters  are  in 
controversy.  (/) 

A  party  may  cause  a  second  deposition  of  a  witness  to 
be  taken,  without  leave  for  that  purpose  ;  but  it  is  discre- 
tionary with  the  court  to  say  which  shall  be  read,  {k) 

Where  a  deposition  has  been  lost,  and  the  witness  is  dead 
at  the  time  of  the  trial,  the  contents  of  the  deposition  may 
be  proved,  like  those  of  any  other  lost  paper.  (/) 

It  is  no  objection  that  a  witness,  who  is  a  party  to  the 
suit,  wrote  his  own  answers  to  the  interrogatories  in  his 
deposition.  (;«) 

(/)  33  111.  499-     See  37  111.  186;  39  111.  602 ;  y:,  II!.  377. 
{g)  54  111.  19.     iBraclwell,466;  80  III.  602.    y6'Ja  /y5'  /^^-^U.^V/ 
{h)  18  Ul.  439- 

(z)  1  Starr  h  Curtis'  An.  Stat.  10S9 ;  Rev.  Stat.  (l«77)  4S1. 
(»  27  111.  232:  23  111.  617;  19  III.  301;  15  111.  576;  II  III.  49S;  3  Giccnl. 
Ev.,  Sec.  326;  69  111.  137;  90  111.  237. 
{k)  20  111.  1S5. 
(/)  34  111.  534. 
[in)  48  111.  145. 


786  JURY. 

Who  are  competent  jurors — Who  are  exempt. 


CHAPTER  XXV. 


JURY. 


It  is  declared  hy  the  constitution  of  Illinois,  that  *'  the 
right  of  trial  by  jury,  as  heretofore  enjoyed,  shall  remain 
inviolate."  (a) 

Who  arc  co7n-petcnt  jurors. — The  statute  of  Illinois  (sec- 
tion 2  of  the  "  act  concerning  jurors,"  1872,)  requires  that 
the  county  board,  in  selecting  from  the  jury-list  the  persons 
who  may  be  drawn  as  jurors  for  any  term,  "  shall  choose 
a  proportionate  number  from  the  residents  of  each  town  or 
precinct,  and  shall  take  the  names  of  such  only  as  are : 
I.  Inhabitants  of  the  town  or  precinct,  not  exempt  from 
serving  on  juries.  2.  Of  the  age  of  twenty-one  years  or 
upwards,  and  under  sixty  years  old.  3.  In  the  possession  of 
their  natural  faculties,  and  not  infirm  or  decrepit.  4.  Free 
from  all  legal  exceptions,  of  fair  character,  of  approved 
integrity,  of  sound  judgment,  well  informed,  and  who  un- 
derstand the  English  language."  [h)  When  bystanders  are 
summoned  to  fill  the  panel  for  a  pending  trial,  the}''  are  to 
be  "persons  having  the  qualifications  of  jurors."  [c) 


Who  arc  exempt. — "  The  governor,  lieutenant-governor, 
secretary  of  state,  auditor  ol  public  accounts,   treasurer, 
superintendent  of  public  instruction,  attorney-general,  mem-       iS\ 
bers  of  the  general  assembl}'  during  their  term  of  office,  all 

{d)  Const,  of  111.  art.  II,  sec.  5.     See  35  111.  375;  53  111.  247. 

(Z))  2  Starr  &  Curtis'  An.  Stat.  1417;  Rev.  Stat.  (1877J  6o2j  74  111.  161. 

(<-)  2  Starr  &  Curtis'  An.  Stat.  1420. 


JURY.  7S7 

Challenges  to  the  array. 


judges  of  courts,  all  clerks  of  courts,  sheriffs,  coroners, 
postmasters,  mail-carriers,  practicing  attorneys,  all  officers 
of  the  United  States,  officiating  ministers  of  the  gospel, 
school-teachers  during  the  terms  of  school,  practicing  phy- 
sicians, constant  ferrymen,  mayors  of  cities,  policemen  and 
members  of  the  fire-department,"  are  in  Illinois  exempt 
from  serving  as  jurors,  (d)  And  "  if  a  person  has  served 
as  a  jury  on  the  trial  of  a  cause  in  a  court  of  record  within  one 
year,  he  shall  be  exempt  from  again  serving  during  such  year, 
unless  he  waives  such  exemption."  (e) 

Challenges  of  jurors. — Challenges  are  of  two  prin- 
cipal kinds,  namely,  challenges  to  the  arrays  and  chal~ 
lenges  to  the  polls. 

Challenges  to  the  array. — A  challenge  to  the  array  is 
made  on  account  of  some  defect  in  executing  the  venire, 
and  is  at  once  an  objection  to  all  the  jurors  in  the  panel.  It 
is  either  a  principal  challenge,  that  is,  one  founded  on  some 
manifest  partiality,  or  error  committed  in  selecting,  draw- 
ing or  summoning  the  jurors,  by  not  pursuing  the  directions 
of  the  acts  of  the  legislature ;  or  it  is  a  challenge  for 
favor.  (/) 

In  Illinois,  under  the  system  established  by  the  statute 
of  selecting  a  certain  number  of  persons  to  serve  as  jurors 
lor  each  week  of  the  term,  it  is  presumed  there  will  seldom 
be  occasion  for  a  challenge  to  the  regular  panel,  {g)  But 
where .  the  sheriff  summons  talesmen,  after  the  regular 
panel  is  exhausted,  the  common-law  objections  may  no 
doubt  be  made  available. 

Among  the  causes  for  challenge  to  the  array  are  the  fol- 
lowing, viz  :  that  the  sheriff  or  officer  who  makes  the  array 
is  of  kindred  or  affinity  to  either  party,  within  the  ninth  de- 

■    (</)  2  Slarr  &  Curtis'  An.  Stat.  1418  ;  78  111.  32S. 

{e)  2  Starr  &  Curtis'  An.  Stat.  14.22;   Rev    Stat.  (1877)  605. 

(/)  T  Bouv.  L.  D,  217.   See  2  Scam.  326;  73  III.  246. 

is)   See  37  111.  447;  2  Scam.  325.  See  72  III.  46S,  52^;  69  111.  523. 


788 


JURY. 

Challenges  to  the  polls. 


gree  ;  that  one  or  more  of  the  jury  are  returned  at  the  re- 
quest of  either  party ;  that  an  action  implying  malice  is 
pending  at  the  suit  of  either  party  against  the  officer,  or  at 
suit  of  the  officer  against  either  party  ;  that  an  action  of  debt 
is  pending  at  the  suit  of  either  party  against  the  officer,  but 
not  if  by  the  officer  against  either  party ;  that  the  officer  is 
under  the  distress  of  either  party  ;  that  the  officer  is  counsel, 
attorney  or  servant  of  either  party,  or  is  an  arbitrator  in  the 
same  matter,  and  has  treated  thereof,  (/i) 

The  causes  of  challenge  to  the  array,  for  favor,  are  such 
as  imply,  at  least,  a  probability  of  bias  and  partiality  in  the 
officer,  but  do  not  amount  to  a  principal  challenge ;  thus, 
that  the  plaintiff  or  defendant  is  the  tenant  of  the  officer,  or 
that  the  son  of  the  officer  has  married  the  daughter  of  the 
plaintiff  or  defendant,  (t) 

An  objection  to  the  mode  of  summoning  a  grand  jury  or 
petit  jury  should  be  made  by  a  challenge  to  the  array,  or 
by  motion  to  quash  the  indictment,  etc.,  founded  upon  an 
affidavit  of  some  irregularity.  Advantage  can  not  be  taken 
of  such  irregularity  on  a  motion  for  a  new  trial.  (/) 

Challenges  to  the  ^olls. — Challenges  to  the  polls  are  ex- 
ceptions made  separatel}-  to  each  juror,  before  he  is  sworn. 
These  may  be  divided,  under  the  practice  of  Illinois,  into 
two  kinds — challenges  for  cause,  and  -pet'eni^tory  chal- 
lenges. 

I.  Challenges  for  cause. — It  is  a  good  cause  for  chal- 
lenge that  a  juror  is  an  alien  ;  {Ji)  or  an  infant ;  or  non  com- 
■pos;  or  that  he  has  not  the  requisite  undei"standing  or 
character ;  or  that  he  is  of  kin  to  either  party  within  the 
ninth  degree ;  (/)  or  that  the  juror  is  interested  ;  (?w)  or  has 


{Ji)  lo  Johns.  107;  I  Hill,  654;  7  Cow.  479.  note  a. 

(?)  Co.  Lit.  156;  86  111.  243. 

(/)  2  Scam.  326.     See  33  III.  276;  89  III.  337;  ^^  HI.  3S4. 

{k)  90  111.  221 ;  40  111.  352. 

(/)  Finch  L.  401;  4  Scam.  556;   115  111.  312. 

l^rii)   I  Bay,  229 ;  8  Serg.  &  Kawle,  444 ;  2  Tyler,  40I. 


JURY.  7^9 

Challenges  to  the  polls. 


formed  and  expressed  an  opinion  of  the  controversy,  («) 
or  upon  any  one  principal  point  in  the  case ;  {o)  but  not 
when  he  merely  expresses  a  conditional  opinion,  {p) 

By  the  statute  of  Illinois,  it  is  a  sufficient  cause  of  cl-.al- 
lenge  of  a  juror,  that  he  lacks  any  one  of  the  qualificativ-ns 
mentioned  in  the  second  section,  above  quoted,  of  that 
statute  ;  or,  if  he  is  not  one  of  the  regular  panel,  that  he  has 
served  as  a  juror  on  the  trial  of  a  cause  in  an}^  court  of 
record  in  the  county,  within  one  year  before  the  time  he  is 
offered  as  a  juror,  or  that  he  is  a  party  to  a  suit  pending  for 
trial  at  the  same  term,  {q) 

The  law  in  relation  to  the  disqualification  of  jurors,  from 
having  formed  opinions,  is  very  fully  discussed  in  the  case 
of  Smith  v.  Eamcs^  3  Scam.  R.  77,  where  the  court  sa3^s, 
that  if  a  juror  has  made  up  a  decided  opinion,  on  the  merits 
of  the  case,  either  from  a  personal  knowledge  of  the  facts, 
from  the  statements  of  witnesses,  from  the  relations  of  the 
parties,  or  either  of  them,  or  from  rumor,  and  that  opinion 
is  positive,  and  not  hypothetical,  and  such  as  will  probably 
prevent  him  from  giving  an  impartial  verdict,  the  challenge 
should  be  allowed.  \i  the  opinion  is  merely  of  a  liglit  and 
transient  character,  such  as  is  usually  formed  by  persons  in 
every  community  upon  hearing  a  current  report,  and  may 
be  changed  by  the  relation  of  the  next  person  met  with, — 
not  a  fixed  conclusion  and  conviction  of  the  mind — or  if  it 
is  hypothetical,  the  challenge  ought  not  to  be  allowed  ;  and 
to  ascertain  the  state  of  the  mind  of  a  juror,  a  full  exami- 
nation, if  deemed  necessary,  may  be  permitted.  The  prin- 
ciples enunciated  in  this  case  have  uniformly  been  adhered 
to  by  the  courts  of  this  state,  (r) 

A  juror  may  be  examined  on  his  voir  dire,  as  to  sucii 

(«)  See  56  111.  344;  116  111.  330;  8  Bi-adw.  173;  90  111.  545. 

{0)  Bun's  Trial,  418;  60  111.  452. 

(/)  8  JohiT?.  445  ;   105  111.  147;  98  111..  472. 

iq)  2  Starr  &  Curtis'  An.  Stat,  1422;  Rev.  Stat.  (1S77)  605;    74  III.  361  ;    S9 

in.  337. 

(r)  See  3  Scam.  83,  412;  i  Gilni.  659  ;  3  Gilni.  368;  13  111.  6S7  ;  24  111.  60: 
26  111.  344;  48  111.  145  ;  53  111.  311  ;  113  111.  550. 


790  JURY. 

Peremptory  challengei'. 


grounds  of  challenge  only  as  are  not  to  his  discredit  or  dis- 
honor ;  and  the  court,  on  motion  of  either  party  in  a  suit, 
will  put  any  juror  upon  his  oath,*to  answer  whether  he  is 
in  any  way  related  to  either  party,  or  has  formed  and  ex- 
pressed an  opinion  in  regard  to  the  merits  of  the  contro- 
versy, or  has  any  particular  interest  or  prejudice  in  the 
cause,  or  any  other  question  concerning  his  competency. 

A  party  ought  not  to  be  forced  to  encounter  a  pre-existing 
opinion,  deliberately  formed,  which  the  juror  believes  to 
be  true,  and  which  the  party  would  be  obliged  to  over- 
come. (5) 

The  prejudice  of  a  juror  against  a  person  not  a  party  to 
the  suit,  can  form  no  objection  to  his  competency.  (/) 

It  is  a  good  cause  of  challenge  that  a  juror  (not  of  the 
regular  panel)  has  served  on  a  petit  jury  w^ithin  twelve 
months.  (?/) 

If  a  challenge  or  exception  to  a  juror  is  not  made  at  the 
time  of  impaneling,  it  can  not  be  made  afterwards  ;  yet,  if 
the  court  improperly  overrules  a  challenge,  the  party  chal- 
lenging is  not  precluded,  by  proceeding  in  the  trial,  from 
availing  himself  of  the  objection  on  a  motion  to  set  aside 
the  verdict,  {v)  And  where  a  juror  was  asked,  before  being 
sworn  as  a  juror,  whether  he  had  made  up  an  opinion  upon 
the  case,  and  he  said  no,  but  it  was  afterwards  ascertained 
that  he  had  formed  and  expressed  an  opinion  upon  the  case 
before  trial,  the  court  gave  the  party  a  new  trial,  {iv) 

2.  Peremptory  challenges. — Peremptory  challenges  are 
those  which  are  made  without  assigning  any  reason,  and 
which  the  court  must  allow.  In  all  civil  actions,  in  Illinois, 
each  party  is  entitled  to  a  challenge  of  three  jurors  without 

(j)  26  111.  344;  74  Til.  361. 

\t)   2S  111.  457.  See  73  111.  69;  78  111.  294:  82  111.  152,  521. 

\u)   Rev.  Stat.  (1877)  605.  See  23  111.  566;  35  111.  392;  69  111.  542. 

{v)    I  Johns.  316. 

\w)   I  Gilm.  659.  See  87  111.  58. 


JURY.  791 

Polling  the  jury. 


showing  cause  for  such  challenge  ;  (x)  and  every  person 
arraigned  for  any  crime  punishable  with  death,  is  admitted 
on  his  trial  to  a  peremptory  challenge  of  twenty  jurors,  and 
no  more ;  and  every  person  arraigned  for  any  offense  that 
may  be  punished  by  imprisonment  for  a  term  exceeding 
eighteen  months,  to  a  peremptory  challenge  of  ten  jurors ; 
and  in  all  other  criminal  trials  the  defendant  is  allowed  a 
peremptory  challenge  of  six  jurors.  The  attorney  prose- 
cuting on  behalf  of  the  People  is  admitted  to  a  peremptory 
challenge  of  the  same  number,  (jy) 

Polling  the  jury. — To  poll  a  jury  is  to  require  that 
each  juror  shall  himself  declare  what  is  his  verdict. 

A  party  has  the  right  to  have  the  jury  polled  on  the  re- 
ceipt of  the  verdict,  whether  it  is  brought  in  sealed,  or 
delivered  orally  by  the  foreman.  This  right,  however, 
must  be  exercised  before  the  jury  is  discharged,  (z)  After 
a  verdict  is  received,  and  the  jury  discharged,  the  control 
of  the  jury  over  the  case  is  at  an  end,  and  the  jurors  can 
not  be  recalled  to  alter  or  amend  the  verdict,  (a) 

A  court  has  a  right,  whenever  it  comes  to  its  knowledge 
that  a  juror  has  been  sworn  who  ought  not  legally  to  sit  as 
a  juror,  to  discharge  him.  (d) 

It  is  too  late  to  object  for  the  first  time,  on  error,  to  any 
irregularity  in  the  impaneling  of  a  petit  jury,  (c) 

(x)  2  Starr  &  Curtis'  An.  Stat.  1812;   Rev.  Stat.  (1S77)  740;  S3  111.  405. 

{}')  lb.  405. 

(z)  4  Gilm.  336;  2  Gilm.  342  ;  32  111.  4S5  ;    19  BraJw.  85. 

(rt)  4  Gilm.  336.      See  3  Gilm.  475. 

{/>)  4  Scam.  557;  2  Scam.  326. 

[c)  33  111.  276. 


792 


TRIAL  AND  VERDICT. 


Who  may  open  the  case — Order  of  proceedings,  elc. 


CHAPTER    XXVI. 


TRIAL    AND    VERDICT. 


WAo  may  open  the  case. — The  general  rule  is,  that  the 
party  having  the  affirmative  of  the  issue,  and  consequently 
the  burden  of  the  proof,  shall  open  and  close  the  case  to 
the  ]vi.ry.  {a)  Where  the  defendant  pleads  the  general 
issue,  and  also  special  pleas,  and  the  general  issue  is  not 
waived,  the  plaintifl'  always  opens  and  closes  ;  (/-•)  but  if  the 
defendant,  at  the  opening  of  the  trial,  waives  the  general 
issue  ;  (c)  or  if  he  pleads  onl}'  a  special  plea  in  avoidance  or 
justification,  and  issue  is  taken  upon  it ;  he  will  be  entitled 
to  the  opening  and  closing  of  the  case  to  the  jury,  {d)  If, 
however,  the  replication  to  such  special  plea  confesses  and 
avoids  it,  as  in  the  case  of  a  plea  of  infancy,  where  a  new 
promise  is  set  up  in  the  replication,  it  seems  that  the 
plaintiff  again  acquires  the  right  of  opening  and  closing,  {c) 
And  when  there  are  several  issues,  if  the  plaintiff  has  the 
affirmative  on  either,  he  has  the  right  to  open  and  close  the 
case. 


Order  of  proceedings  on  the  trial. — The  counsel  of  the 
party  having  the  affirmative  opens  the  case,  by  reading  to 
the  jury  the  declaration  and  subsequent  pleadings,  or  stat- 

-giving  the  jury  to  under- 


ing  the  substance  of  the  same 


(«)  26  111.  418;  52  111.  336;  54  111.  25S;  7  Wis.  I;  24  Geo.  211;  JI  Texas. 
314;  119  III.  352;  106  111.  152. 

(b)  2  Met  (Ky.)  5S1  ;  37  N.  H.  229;  119  111.  352. 

(c)  90  111.  126. 

{d)   107  111.  489;  l2Braflw.  454;  12  Tnd.  256;  26  111.  418;  57  111.  261. 
{e)  4  Pick.  156;  6  rick.  225 ;  7  Pick.  94. 


TRIAL  AND  VERDICT.  793 

Order  of  proceedings  on  the  trial,  etc. 

Stand  the  questions  to  be  determined — and  briefly  stating 
the  facts  and  circumstances  of  the  case,  as  they  will  appear 
from  the  evidence  to  be  adduced,  the  application  of  the 
evidence  to  the  points  in  issue,  and  the  principles  of  law 
governing  the  same.  He  may  also  state  the  matters  of 
defense,  if  they  appear  from  the  pleadings,  or  from  a 
notice  of  set-off,  or  the  like,  and  also  the  evidence  by  which 
those  matters  can  be  disproved. 

The  opposite  counsel  then  states  to  the  jury  the  matters 
of  his  client's  defense,  and  the  evidence  which  he  will  ad- 
duce in  support  of  it,  and  comments  upon  the  statements 
of  the  opposite  party,  so  far  as  to  make  his  own  case  intel- 
ligible. Or,  the  counsel  may  waive  his  statement  of  the 
defense,  until  the  opposite  party  has  rested  his  case.  The 
usual  practice  in  Illinois,  however,  is  for  both  parties  to 
state  their  cases  respectively  to  the  jury,  before  the  exami- 
nation of  witnesses  on  either  side. 

If  any  question  arises  in  the  course  of  the  trial,  as  to  the 
competency  of  a  witness,  it  must  be  determined  before  the 
witness  is  allowed  to  proceed.  If  a  child  is  offered  as  a 
witness,  the  court  will  first  examine  it  as  to  its  sense  of  the 
obligation  of  an  oath,  before  permitting  it  to  be  sworn. 
Where  the  objection  is  upon  the  ground  of  the  infamy  of 
the  witness,  such  objection  ought  to  be  made  before  the 
witness  is  sworn  ;  and  the  record  of  his  conviction  should 
be  produced.  {J")  A  witness  is  not  bound  to  answer  a  ques- 
tion in  regard  to  any  offense  imputed  to  him,  which  would 
subject  him  to  punishment.  Whether  he  is  bound  to  an- 
swer a  question  to  his  own  disgrace  merely,  is  not  fulh'- 
settled,  but  it  seems  that  such  question  may  be  asked,  {g) 
In  Illinois,  a  witness  is  not  disqualified  by  reason  of  his 
conviction  of  any  crime.  (//) 

When   the   parties   have    concluded  their  evidence,  the 

(/)  2  Hilton,  (N.  Y.)  247;  2  Met.  (Ky.)  3S7;  2  Stark.  Ev.  716. 
iff)  37  Miss.  383;  I  Stark.  Ev.  137,  144. 
(/i)  Rev.  Stat.  (1S77)  475. 


794  TRIAL  AND  VERDICT. 

Deliberations  of  the  jury. 

. * . . 

case  is  argued  to  the  jury  by  the  counsel  for  the  party  hav- 
ing tlie  affirmative  of  the  issue,  after  which  the  opposite 
part}^  rnay  reply,  and  then  the  former  has  the  closing  of 
the  arficument. 

After  the  argument,  the  court  instructs  the  jur}''  as  to  the 
law  of  the  case,  upon  the  evidence  adduced,  and  the  case 
is  then  committed  to  the  jury.  In  Illinois,  the  instructions 
must  be  reduced  to  writing.  (/*) 

Dclibci'ations  of  the  jury . — After  the  case  has  thus  been 
committed  to  the  jury,  unless  a  verdict  is  agreed  upon 
without  quitting  the  jury-box,  the  jurors  retire  to  a  room 
provided  for  the  purpose,  to  deliberate  upon  their  verdict, 
a  sworn  officer  accompanying  and  taking  charge  of  them. 

After  the  jurors  have  retired,  they  are  not  allowed  to 
speak  with  any  person  save  the  officer  who  attends  them, 
and  not  with  him  except  to  tell  him  whether  or  not  they 
have  agreed  upon  their  verdict.  Neither  can  they  receive 
any  new  evidence,  after  having  so  retired.  Even  the  judge 
who  presided  at  the  trial  is  not  permitted  to  give  any  in- 
structions or  directions  to  the  jury  respecting  the  cause,  un- 
less in  open  court,  and,  where  practicable,  in  the  presence 
of  both  parties.  Any  such  communication  will  be  a  good 
ground  for  a  new  trial,  {j)  But  the  jury  may  be  called 
into  the  court  for  further  instructions,  either  by  agreement 
of  counsel,  or  at  the  request  of  the  jury.  {Jc)  In  Illinois,  all 
papers  read  in  evidence,  other  than  depositions,  may  be 
carried  from  the  bar  by  the  jury.  (/) 

The  jury  should  remain  together  until  discharged  by  or- 
der of  the  court.  By  the  practice  of  the  courts,  however, 
permission  is  frequently  given  to  the  jury,  when  out  during 
a  long  adjournment  of  the  court,  or  for  the  night,  to  seal 

(0  Rev.  Stat.  (1877)  740;  80  111.  51,  88;  79  111.  525,  555,  584;  77  III.  25,92, 
182,  217,  280,  309;  78  111.  302,  332,  347,  433,  438,  443>  492. 

(;■)  I  Pick.  337;  23  III.  349- 

(Jt)  20  111.  392.     See  33  111.  4S5. 

(/)  Rev.  Stat.  (1877)  741.  See  37  111.  538;  19  111.  456;  12  Vt.  582;  7  Vt. 
149;  22  Vt.  563;  9  Ivld.  145  ;  76  111.  48S;        111.  383;  67  111.  219. 


TRIAL  AND  VERDICT.  795 

Deliver}'  of  the  verdict,  etc. 

up  the  verdict,  when  agreed  upon,  and  then  to  separate  ;  (w) 
but  a  permission  to  the  jurors  to  seal  up  their  verdict,  and 
separate,  does  not  dispense  witli  their  personal  attendance 
in  court  when  the  verdict  is  opened  ;  and  if  any  of  them 
then  dissent,  the  verdict  can  not  be  received.  (72) 

If  the  jurors  are  wholly  unable  to  agree  upon  a  verdict, 
the  court,  in  its  discretion,  will  discharge  thetn 

Delivery  of  the  verdict,  etc. — When  the  jurors  have 
agreed  upon  their  verdict,  they  return  with  it  at  once  into 
the  court,  if  then  open  ;  otherwise  as  soon  as  it  is  open. 
If  by  permission  of  the  court  they  have  separated  after  hav- 
ing agreed,  the  verdict  should  be  in  writing,  and  sealed 
up.  The  verdict,  if  in  writing,  is  then  read  aloud  by  the 
clerk,  or  judge,  who  asks  the  jurors  if  they  affirm  the  same  ; 
for  a  verdict  is  not  valid  and  final  until  pronounced  and  re- 
corded in  open  court ;  and  before  it  is  thus  affirmed,  the 
jury  may  vary  the  verdict  as  first  returned.  {0)  After  the 
verdict  is  received,  the  jury  may  be  polled,  at  the  request 
of  the  party  against  whom  it  is  rendered — that  is,  the  jurors 
may  be  asked,  individually,  whether  they  agree  to  the  ver- 
dict as  it  is  read  ;  and  then  any  juror  may  disagree  there- 
to ;  {-p)  but  when  they  have  given  their  verdict,  and  have  af- 
firmed it,  it  is  beyond  recall,  and  they  are  discharged  from 
the  case.  No  juror  can  then  be  allowed  to  say  that  he  will 
not  agree  to  it,  {q)  or  that  he  agreed  to  it  upon  mistaken 
principles;  (r)  nor  can  the  affidavit  of  a  juror  be  read,  to 
impeach  the  verdict.  (5) 

{ni)  2  Scam.  70;  4  Gilm.  336;  8  Pick.  170. 

(«)  4Gilm.336;  32  111.  aS^.  See  30  111.  256;  49X11.23,143;  12C.-1I.  4S3; 
3  Bla.  Com.  377;  131  Mass.  26. 

(0)  6  John';.  68;  7  Johns,  32;  31  Pcnn.  13I ;  15  Tcxa^;,  37;  32  111.  4S5.  See 
22  III.  357;  48  111.  52;  HI  111.  432. 

(/)  2  Johns.  Cas.  276;  9  Pick.  426;  6  Wis.  205  ;  19  Bradw.  85. 

{q)  I  Keb.  416;  Howe's  Pr.  25S;  80  111.  104. 

(r)  14  Mass.  245;  15  Bradw.  477. 

{$)  24  111.  187;  28  Geo.  78,  199;  22  Texas,  105;  I  Gray,  83;  12  Howard, 
(U.  S.)  361 ;  30  111.  256  ;  112  111.  656. 


796  TRIAL  AND  VERDICT. 

Verdicts — General. 


Verdicts. — ^Verdicts  are  of  two  kinds,  general  and 
special.  The  former  are  where  the  fury  finds  that  the  de- 
fendant is  "guilty,"  or  "not  guilty;"  "did  promise,"  or 
"did  not  promise,"  etc.  The  latter  are  where  special  facts 
are  found,  and  the  questions  of  law  thereupon  referred  to 
the  court.  These,  in  Illinois,  have  heretofore  seldom  oc- 
curred. 

General  verdicts  ought  to  be  framed  in  the  words  of  the 
issue  tendered  ;  {t)  but  if  they  are  informal,  the  court  will 
put  them  in  form  according  to  the  justice  of  the  case,  be- 
fore they  are  affirmed,  if  the  point  in  issue  can  be  collected 
from  the  finding ;  (?^)  or  the  court  may  send  the  jury  back, 
to  put  the  verdict  in  proper  form,  iv) 

A  verdict  should  find  the  whole  issue  tried,  {zv)  and 
nothing  more.  If  the  jury  should  find  facts  not  submitted 
to  them,  besides  finding  the  issue,  such  improper  finding 
will  be  rejected  as  surplusage  ;  {x)  as  if  they  should  under- 
take to  find  costs  for  either  party,  with  which  subject  they 
have  nothing  to  do.  {y) 

The  party  in  whose  favor  the  verdict  is  rendered  should 
see  that  it  is  in  regular  form  ;  and  this  is  usually  done  at 
the  bar,  before  the  verdict  is  affirmed. 

The  statute  of  Illinois  provides,  that  "whenever  an  en- 
tire verdict  shall  be  given  on  several  counts,  the  same  shall 
not  be  set  aside  or  reversed  on  the  ground  of  an}^  defective 
count,  if  one  or  more  of  the  counts  in  the  declaration  be 
sufficient  to  sustain  the  verdict."  iz) 

(j?)  3  Pick.  124;  5  Pick.  244.  See  33  111.  452;  38  111  63;  39  111.  164; 
42  111.  148,  457 ;  43  111.  494;  44  111-  42,  352 ;  45  111-  437- 

(«)  10  Mass.  64;  32  111.  75;  48  111.  52;  49  111.  72,  4S9;  52  111.  210; 
54  III.  189 ;  104  U.  S.  106. 

{v)   9  Ind.  157  ;  22  111.  357;  32  III.  4S5. 

(w)  Salk.  372,  374;  6  Pick.  512. 

(^x)  6  Mass.  303 ;  4  Bradw.  94. 

\y)   II  Mass.  358. 

(z)  Rev.  Stat.  (1877)  741  ;  112  U.  S.  604;  113  U.  S.  339. 


TRIAL  AND  VERDICT. 


Verdicts — Special. 


Where  two  suits  between  the  same  parties  are  consolidated, 
but  one  verdict  is  necessary,  (a) 

Where  the  verdict  of  a  jury  is  not  in  form,  mere  irregular- 
ity in  the  proceedings  of  the  court  in  having  the  same  put  in 
form,  as  in  oral  remarks  and  instructions,  which  could  not 
have  affected  the  finding  of  the  jury  except  as  to  the  mere 
form  of  the  verdict,  will  not  be  sufficient  error  to  reverse,  (d) 

Special  verdict. — The  act  of  1887  provides, 

"  That  in  all  trials  by  jury  in  civil  proceedings  in  this  state 
in  courts  of  record,  the  jury  may  render,  in  their  discretion 
either  a  general  or  a  special  verdict ;  and  in  any  case  in  which 
they  render  a  general  verdict  they  may  be  required  by  the 
court,  and  must  be  so  required  on  request  of  any  party  to 
the  action,  to  find  specially  upon  any  material  question  or 
questions  of  fact  which  shall  be  stated  to  them  in  writing, 
which  questions  of  fact  shall  be  submitted  by  the  party  re- 
questing the  same  to  the  adverse  party  before  the  commence- 
ment of  the  argument  to  the  jury. 

2.  Submitting  or  refusing  to  submit  a  question  of  fact  to 
the  jury  when  requested  by  a  party  as  provided  by  the  first 
section  hereof,  may  be  excepted  to  and  be  reviewed  on  ap- 
peal or  writ  of  error  as  a  ruling  on  a  question  of  law. 

3.  When  the  special  finding  of  fact  is  inconsistent  with 
the  general  verdict,  the  former  shall  control  the  latter  and 
the  court  may  render  judgment  accordingly."  (c) 

{a)  57  III.  126. 
Kh)  78  111.  589. 
(r)    3  Starr  &  Curtis'  Suj  pi.  (1SS7)  435;  Laws  of  1887,  p.  251. 


,^9S  NEW  TRIALS. 


Misbehavior  of  the  party  prevailing. 


CHAPTER  XXVII. 


NEW    TRIALS. 


The  practice  of  granting  new  trials  is  said  to  have  be- 
gun, in  England,  in  1652.  {a)  At  first  they  could  be  ob- 
tained only  with  the  greatest  difficulty,  but  in  modern  prac- 
tice they  are  liberally  granted  in  fiirtherance  of  justice. 
Where  however  the  proceedings  in  a  cause  have  been  reg- 
ularly and  fairly  conducted,  courts  will  very  reluctantly 
disturb  a  verdict  and  grant  a  new  trial,  {b) 

The  principal  grounds  for  setting  aside  a  verdict  and 
granting  a  new  trial,  ma}''  be  considered  under  the  follov/- 
ing  heads : 

I .  Misbehavior  of  the  -party  -prevailing. — If  a  party  is 
guilty  of  any  improper  conduct  towards  a  witness,  such 
as  threatening  or  persuading  him,  or  influencing  him  upon 
the  stand,  as  by  making  signs  how  the  witness  shall  answer, 
a  new  trial  will  be  granted ;  (c)  or  if  the  prevailing  party, 
his  agent  or  counsel,  surreptitiously  hands  to  the  jury  any 
paper  not  previously  offered  in  evidence,  being  material  to 
the  point  in  issue  ;  (f/)  or  if  he  or  they  directly  approach  the 
jury  on  the  subject  of  the  trial ;  {c)  or  where  indirect  meas- 
ures have  been  resorted  to  for  the  purpose  of  influencing 

(rt)  7  Eng.  Com.  Law  Rep.  293 ;  S  id.  273 ;  2  Hall,  (N.  Y.)  50. 

(J)')  I  Scam.  i:!S;  12  Ind.  257;  8  Ind.  252.     See  13  111.  85;  53  111.  354. 

(c)  7  Mod.  156;  I  Pick.  38,  42;  13  Mass.  218. 

(rf)  Co.  Lit.  227;  I  Sid.  235;  4  W.  C.  C.  R.  1^9;  5  jSIass.  405;  i  Parker 
C.  R.  256;  3  Foster,  471. 

{e)  I  Serg.  &  Rawle,  169;  7  Serg.  &  Rawle,  358;  4  Binn.  150;  13 
Mass.  21S;  2  Bay,  94;  6  Greenl.  140;  32  III.  4S5. 


NEW  TRIALS.  799 


Mistakes  and  misconduct  of  jury,  etc. 


the  jury,  {/)  or  tricks  practiced,  [g)  or  disingenuous  at- 
tempts made,  to  suppress  or  stifle  evidence,  or  thwart  the 
proceedings,  or  obtain  an  unconscientious  advantage,  or 
mislead  the  court  and  jury  ;  a  new  trial  will  be  awarded.  (//) 
If  a  party  in  whose  favor  a  verdict  is  rendered,  or  his  at- 
torney, holds  a  conversation  with  any  of  the  jurors,  about 
the  case,  after  it  has  been  submitted,  and  before  the  verdict 
is  delivered,  it  will  be  a  ground  for  a  new  trial.  (/) 

2.  Mistakes  and  misconduct  of  the  jury  ^  etc. — Where 
the  jurors  determine  their  verdict  by  casting  lots,  a  new 
trial  will  be  granted  ;  (/)  but  where  each  juror  named  a 
sum,  and  the  whole,  being  added  together,  was  divided  by 
twelve,  and  the  quotient  was  taken  for  the  verdict,  a  new 
trial  was  refused.  {U) 

Where  a  juror  had  formed  and  expressed  a  decided 
opinion  upon  the  merits  of  the  case,  adverse  to  the  defend- 
ant, and  that  fact  was  not  known  to  the  latter,  or  his  coun- 
sel, who  exercised  proper  diligence  by  asking  the  juror, 
before  he  was  sworn,  whether  he  had  formed  and  ex- 
pressed an  opinion, — it  was  held  that  the  defendant  was 
entitled  to  a  new  trial.  (/) 

If  the  jurors  act  in  disregard  of  their  oath,  {ni)  drink 
spirituous  liquors  after  being  charged  with  the  cause,  (;z)  or 
resort  to  artifice  to  get  rid  of  their  confinement,  {p)  or  com- 
mit other  acts  of  that  sort,  it  will  avoid  a  verdict.  (^)     But 

(/)  3  Brod.  &  Bing.  272;  7  Moore,  S7;  7  East,  108. 
(^)  II  Mod.  141 ;   II  Geo.  203. 
(//)  Grah.  N.  T.  56;  4  Chit.  Pr.  59. 

(O  32  in.  4S5. 

(y)  I  Term,  11;  Barnes,  441;  i  Stra.  642;  12  Pick.  496;  7  Clarke, 
(Iowa)  81,  482;  7  id.  go;   14  Mass.  205  ;   i  Mass.  530;  62  111.  332. 

{k)  I  Mass.  530,  543.     See  88  111.  245,  312. 

(/)  I  Gilm.  659.     See  14  Mass.  205;  3  Dall.  515;  9  Cal.  298. 

(m)  Cro.  E:.iz.  778;  25  Geo.  494;  S  Clarke,  (Iowa)  477.     See  47  III.  206. 

(h)  4  Cow.  20;  7  Cow.  562. 

{o)  5  Cow.  2S3. 

(/)Bumb.  35;  Barnes,  43S;  i  Str.  462;  i  Bl.  129;;  Comb.  357;  4 
Cliit.  Pr.  48. 


8oo  NEW  TRIALS. 

Verdict  against  law  and  evidence. 

misconduct  on  the  part  of  the  jurors  is  not,  in  all  cases,  a 
sufficient  ground  for  setting  aside  a  verdict ;  and  althougii 
their  misconduct  may  subject  them  to  punishment,  yet  ii' 
there  does  not  appear  to  have  been  any  abuse,  the  verdict 
will  not  be  disturbed,  {q) 

If  an  officer,  having  cliarge  of  a  jury,  permits  any  mem- 
ber of  it  to  drink  spirituous  liquors  after  he  is  sworn,  but 
before  the  case  is  submitted,  the  officer  may  be  punished 
for  it,  but  the  verdict  will  not  be  vitiated,  (r) 

The  affidavits  of  jurors  themselves  will  never  be  received, 
to  prove  any  impropriety  or  misconduct  on  their  part,  re- 
lating to  the  trial  or  verdict.  (5) 

3.  Verdict  agaiiisl  lavj  and  evidence. — A  new  trial  will 
be  granted  where  the  verdict  of  the  jury  is  contrary  to  the 
law,  (/)  or  manifestl}^  against  the  evidence,  (w) 

But  unless  the  verdict  is  clearly  against  the  evidence,  a 
new  trial  will  not  be  granted ;  iv)  especially  where  two 
juries  have  determined  the  same  way ;  {zv)  or  where  a 
former  jury  could  not  agree ;  (a*)  or  where  the  v^erdict  is 
against  the  party  having  the  burden  of  proof,  (jy)  A  new 
trial  can  only  be  granted  in  extraordinary  cases,  where  i': 
is  manifest  that  the  jurors  have  mistaken  or  abused  their 

{q)   I  Cow.  221,  note.     See  47  111.  376;  85  111.  56. 

(r)  19  III.  74.     See  30  111.  256;  47  111.  376. 

(5)  24  111.  187;  9  Geo.  121;  1  Gray,  S3;  1  Parker  C.  R.  256;  5  Fos- 
ter, 114;  8  Texas,  159;  12  Geo.  500;  12  How.  U.  S.  361;  i  Term,  11;  I 
Mass,  542;  4  Mass.  391;  28  Geo.  78,  199;  30  111.  256;  45  111.  37.  But  see 
Breese,  24 ;  88  111.  245  ;  89  111.  386. 

{t)  5  Mass.  547;  18  Pick.  13;  9  Geo.  40S;  36  Miss.  458;  i6  111.  500;  4 
111.  206;  85  111.  238. 

(«)  5  Mass.  353;  7  Mass.  261 ;  8  Mass.  336;  13  Mass.  507;  27  Geo.  593; 
28  Geo.  491;  20  Ark.  443;  2  Hilton,  (N.  Y.)  397;  24  Miss.  694;  i2Cal.  88; 
I  Head,  25S;  37  Maine,  351.     See  2  W.  &  L.  111.  Dig.  66S-677;  55  111.  317. 

[v)  5  Mass.  353;  15  Pick.  291;  7  Ohio,  276;  28  Geo.  308;  8  Flor.  299; 
35  Miss.  381 ;  23  Texas,  156;  10  Cal.  301.  See  2  W.  &  L.  III.  Dig.  66S-677; 
55111.317;  87111.454;  86  111.  501. 

(w)  9  Mass.  436;  7  Mass.  297;  iS  Pick.  13;   14  Miss.  358 

(.r)  8  Pick.  122;   13  Geo.  34. 

O)  18  Pick.  13. 


NEW  TRIALS.  8oi 


Excessive  or  inadequate  damages — Admitting  or  refusing  evidence. 

trust,  {z)  or  where  the  verdict  is  clearlj'-  against  the  weight 
of  evidence,  {a)  It  will  not  be  granted  because  there  is  an 
entire  absence  of  direct  proof,  and  presumptions  alone  are 
relied  on  to  establish  the  necessary  facts,  {b) 

4.  Excessive  or  inadequate  damages. — New  trials  may 
be  granted  for  excessive  or  inadequate  damages,  where 
there  are  fixed  rules  and  principles  whence  it  may  be 
known  that  there  is  an  error  in  the  verdict ;  as  in  actions 
on  contracts,  or  for  torts  done  to  property,  the  value  of 
which  may  be  ascertained,  {c)  And  whenever  the  court  is 
satisfied  that  there  is  no  reasonable  proportion  between  the 
injury  and  the  compensation,  it  is  its  duty  to  grant  a  new 
trial,  {d)  The  damages,  however,  must  be  clearly  exces- 
sive or  inadequate,  and  such  as  everybody  would  oxy  out 
against,  and  not  merely  a  sum  larger  or  smaller  than  the 
judge  who  presided  at  the  trial  would  have  given,  {e) 

5.  Admitting  im'pro^cr,  or  refusing  proper  evidence. — 
If  the  court  errs  in  admitting  or  refusing  testimony,  a  new 
trial  will  be  granted ;  [f)  but  if  the  improper  testimony  is 
not  objected  to  on  the  trial,  and  the  whole  evidence  has 
been  weighed  b}'  the  jur}-,  the  court  will  not  disturb  the 
verdict,  [g) 

A  verdict  will  not  be  set  aside  because  evidence  has  been 
erroneously  admitted,   if  such  evidence  is  entirely  unim- 

{z)  8  Pick.  122,  126.     See  2  Scam.  296,  53S;  6  Wis.  319;  47  111.  206. 

{a)  20  Pick.  285,  289;  15  Pick.  291;   13  111.  697;  z^  111.  325;  34  111.  loS. 

(3)  16  Mass.  345;   12  Geo.  229. 

(0  5  Mass.  435;  21  Pick.  37S;   i  N.  J.  183;  44  111.  425.     See  7  Wis.  465. 

id)  15  Mass.  365 ;  6  Clarke,  (Iowa)  97  ;  29  Barb.  (N.  Y.)  234.  See  2  W. 
&  L.  III.  Dig   672-677  ;  55  111.  492;  87  111.  94,  125,  242;  86  111.  210,  290. 

(e)  Stra.  692;  3  Wils.  iS,  62;  7  Term,  529;  7  Pick.  82;  5  Ind.  250;  19 
Conn.  319;  3  Strobh.  425;  2  Met.  (Ky.)  558;  i  Hilton,  (N.  Y.)  126,  147; 
27  Geo.  58.     See  2  W.  &  L.  111.  Dig.  672-677 ;  55  111.  185,  318 ;  86  III.  49S. 

(/)  7  Mass.  518;  7  Johns.  306;   i  Cal.  92;  24  111.  597;  50  111.  290. 

{§■)  4  Blackf.  369;  4  Mass.  245.     See  2  Scam.  245,  248. 


So2  NEW  TRIALS. 


1 


Error  in  charge  to  jury. 


portant ;  (Ji)  nor  when  a  new  trial  must  result  in  the  same 
verdict,  [i)  But  the  admission  of  incompetent  or  irrelevant 
testimony,  calculated  to  make  an  impression  on  the  minds 
of  the  jury,  is  a  good  ground  for  a  new  trial ;  for  it  is  im- 
possible to  say  what  influence  such  testimony  may  have 
exerted.  (/) 

The  refusal  to  admit  proper  evidence  is  not  a  gromid  for 
setting  aside  the  verdict,  if  the  excepting  party  was  not 
thereby  injured.  Where  the  deposition  of  a  witness  was 
erroneously  rejected,  and  the  party  afterwards  procured  the 
attendance  and  testimony  of  the  witness  at  the  trial,  it  was 
held  that  the  rejection  of  the  deposition  was  not  a  ground 
for  a  new  trial,  {k)  ' 

7.  E^ror  in  the  charge  to  the  jury. — Error  of  the  court 
in  improperly  charging  or  refusing  to  charge  the  jur}^  is  a 
ground  for  a  new  trial.  The  following  observations,  under 
this  head,  refer  to  the  statutory  provisions  and  the  adjudi- 
cations and  practice  in  Illinois,  respecting  instructions  to  the 
jury. 

It  is  provided  by  the  statute,  that  the  court,  in  charging 
the  jury,  shall  instruct  onl}-  as  to  the  law  of  the  case ;  and 
all  instructions  must  be  in  writing.  (/)  It  is  usual  for  the 
counsel  to  prepare  the  instructions,  and  submit  them  to  the 
judge  ;  and  the  statute  requires  the  judge  to  write  on  the 
margin  of  such  as  he  approves,  the  word"  given,"  and  on 
the  margin  of  such  as  he  can  not  give,  the  word  "  refused." 
After  instructions  are  given,  he  may  not  qualify,  modify,  or 
in  any  manner  explain  them,  otherwise  than  in  writing  ;  {m) 

(Jt)  5  Ind.  2S6;  8  Rich.  90;  14  Ark.  114;  3  Foster,  507;  14  000.^43;  i  Cal. 
92;  3  Bosw.  (N.  Y.)  505;  39  N.  H.  247;  36  Miss.  45S;  31  Maine,  343;  4J 
111.  300.     See  40  111.  316;  45  111.  22S;  50  111.  61. 

(/)  16  Geo.  368;  36  Miss.  178,  617.     See  42  111.  300.  87  111.  105. 

(/)  9  Barb.  619;   13  Barb.  42;  35  Miss.  584;  36  Miss.  165;  22  Tex.  257. 

(-^)  15  N.  H.  504.     See  19  111.  631. 

(/)  Rev.  Stat.  (1874)  781  ;  Rev.  Stat.  (1877)  740;  85  111.  526. 

{vi)  Rev.  Stat.  (1877)  745;  19  111.  82.  See  11  111.  4S3;  83  111.  19;  77  HI. 
182;  71  111.  100;  70  111.  571. 


NEW  TRIALS.  So^ 


Error  in  charge  to  jury. 


but  he  is  not  prohibited  from  giving,  of  his  own  accord,  any 
written  instructions  appHcable  to  the  case,  (n) 

Where  the  parties  agree  to  a  trial  by  the  court,  without  a 
jury,  "  upon  such  trial  either  party  may,  within  such  time 
as  the  court  may  require,  submit  to  the  court  written  prop- 
ositions to  be  held  as  law  in  the  decision  of  the  case,  upon 
which  the  court  shall  write  'refused'  or  '  held,'  as  he  shall 
be  of  opinion  is  the  law,  or  modify  the  same,  to  which 
either  party  may  except  as  to  other  opinions  of  the 
court."  (o) 

Instructions  must  be  based  on  the  evidence,  and  appli- 
cable to  the  case,  and  not  contain  mere  abstract  proposi- 
tions, (p)  They  should  be  concise,  briefly  presenting  the 
points  of  law  on  which  the  party  relies,  and  not  argumenta- 
tive ;  (q)  and  they  ought  to  be  as  few  and  simple  as  possible, 
as  otherwise  they  are  likely  to  mislead  the  jury,  (r) 

Instructions  should  present  the  law  of  the  case,  leaving 
the  facts  to  the  jury,  and  not  assume  facts  to  have  been 
proved,  {s) 

If  instructions  given  were  calculated  to  mislead,  and  must 
have  misled  the  jur}-,  it  is  ground  for  a  new  trial,  or  a  re- 
versal of  the  judgment.  (/) 

When  two  instructions  are  asked,  both  containing  tlie 
same  principle  of  law,  the  court  may  give  the  one  and  re- 
fuse the  other,  (u) 

If  substantial  justice  has  been  done,  even  though  im- 
proper instructions  have  been  given,  or  proper  instructions 

(«)  4  Gilm.  439;  20  111.  47S;  22  III.  140. 

(o)   Rev.  Stat.  (1877)  741  ;  83  111.  354;  79  I"-  388 

(/)  See  I  Scam.  47;  14  111.  472;  18  111- 266;  19111.29,510;  20  111.  115 
478;  27  111.  440;  28  111.  135;  29  III.  269:37  111.  341;  43  111-  119;  44  III.  ^^3, 
46  111.  460;  49  111.  62;  50  111.  512;  54  111.  4S5;  86  111.  424. 
-   (</)  20  111.  65.  See  86  111.  62;  75  111.  548. 

(;-)  24  111.  4S0;  18  111.  449.  See  16  111.  497  ;  89  111.  62  ;  87  III.  18. 

(s)  See  16  111.  283,415;  26  111.438;  35  111.204;  37  111.99;  48  111-  5"  ;  S7 
111.  174. 

(/)  24  111.  628.  See  44  111.  4S3 ;  49  111.  62 ;  54  111.  485  ;  i  Bradwell,  439. 

(u)  20  111.  443,  557  ;  23  III.  551  ;  37  Miss  671.  Sec  37  111.  341  ;  41  HI-  192; 
44  111.  225;  45  111.  228,437;  49  111.  278;  50  111.  497;  53  111.  354;  89  111.  38; 
87  111.  146;  86  111.  309;  79  111.  409;  S3  111.  204.  302. 


8o4  NEW  TRIALS. 


Nev/ly  discovered  evidence. 


refused,  the  verdict  will  not  be  set  aside,  (v)  And  although 
an  instruction  may  be  clearly  wrong,  yet  if  another  instruc- 
tion, on  behalf  of  the  same  party,  puts  the  case  fairly  be- 
fore the  jury,  the  finding  will  not  be  disturbed,  (zf) 

8.  I^cwly  discovered  evidence. — In  order  to  support  a 
motion  fcr  a  new  trial,  upon  the  ground  of  newly  discov- 
ered evidence,  it  ought  to  be  made  to  appear  that  the  testi- 
mony has  been  discovered  since  the  trial,  or  that  no  laches 
is  imputable  to  the  party,  and  that  the  testimony  is  mate- 
rial. If  the  party  knew  of  the  existence  of  the  testimony, 
and  could  not  procure  it  in  time,  he  ought  to  have  applied 
for  a  postponement  of  the  trial,  {x) 

A  new  trial  will  not  in  general  be  granted  for  the  purpose 
of  introducing  newly  discovered  evidence,  merely  cumula- 
tive in  its  character,  and  not  conclusive,  (j')  or  which  would 
only  be  in  mitigation  of  the  damages  ;  (z)  nor  for  the  pur- 
pose of  impeaching  the  testimony  given  on  the  trial,  (a) 
But  cases  may  arise  that  may  require  a  relaxation  of  the 
latter  rule,  to  prevent  a  palpable  wrong  ;  {d)  and  if  the  new 
evidence  goes  to  impeach  the  whole  of  the  opposite  party's 
case,  by  the  imputation  of  fraud,  a  new  trial  will  sometimes 
be  granted — as  where  payment  was  sworn  to  upon  the  trial 
by  two  witnesses,  who,  there  was  strong  reason  to  believe, 
had  been  tampered  with,  {c)  Where  the  newly  discovered 
evidence  is  not  cumulative  in  regard  to  the  particular  point 

{v)  iSIU.  449;  19  111.  59;  23  111.  498;  26  111.  8i  ;  27  111.  115;  33  111.  175,; 
35  III.  22;  37  111.  333;  64  111.  329;  78  111.  332;  83  III.  204;  95  111.  118. 

{w)   27  111.  115;  23  111.  498;  47  111.  206,  See  24  111.  628;  71  111.  417. 

(x)   100  111.  52;  21  111.  App.  Ct,  580,  591.  See  14  111.  139;  104  111.  3S5. 

(.j)  24  111.  24;  47  111.  376;  53  111.  452;  89  111.  255;  87  111.  170;  71  Jll  273; 
69  111.  229;  77  111.  319;  73  111.  56;  70 111.  322;  84  111.  624;  86  III.  493;  113  M. 
596;  92  III.  204;  102  111.  160,  241. 

(z)   3  Scam.  483.  See  I07  HI-  313- 

(«)  2  Blackf.  435,  60S;  6  Blackf.  496;  7  Blackf.  186;  24  111.  1S7.  See  40 
111.  310;  100  111.  603. 

(d)  16  111.  316;  13  Geo.  513;  39  Maine,  263;  2  Gray,  434;  S4  111.  624. 

(<r)  4  Binn.  4S1  ;   15  Ark.  395. 


NEW  TRIALS.  80= 


Absence  or  mistakes  of  witnesses. 


to  which  it  relates,  and  its  importance  could  not  have  been 
foreseen,  and  it  strengthens  the  conviction  that  justice  has 
not  been  done,  a  new  trial  may  be  granted,  {d) 

A  new  trial  may  be  awarded  to  enable  a  defendant  to 
prove  an  alibi,  but  this  will  be  done  with  great  caution,  [e) 

The  affidavit  in  support  of  an  application  for  a  new  trial, 
on  the  ground  of  newly  discovered  evidence,  must  fully 
set  forth  such  evidence,  (y)  and  must  show  that  it  has  been 
discovered  since  the  trial ;  that  it  is  material  to  the  issue  ; 
that  it  is  true  ;  that  it  is  not  cumulative ;  that  it  does  not  go 
to  impeach  the  character  of  a  witness ;  and  that  it  could 
not  have  been  produced  on  the  trial  by  the  use  of  due  dili- 
gence, {g)  And  the  application  should  be  supported  by 
the  affidavit  of  the  witness  by  whom  it  is  proposed  to  prove 
the  matters  relied  on,  or  some  excuse  should  be  shown  for 
not  producing  such  affidavit,  [h) 

9.  Absence  or  mistakes  of  zvitnesses. — A  new  trial  will 
sometimes  be  granted  on  account  of  the  unavoidable  ab- 
sence of  witnesses.  (/)  But  it  must  be  where  the  party  was 
so  situated  that  a  continuance  could  not  be  had  ;  for  if  a 
party,  knowdng  his  witnesses  to  be  absent,  chooses  to  risk 
a  trial  without  their  testimony,  he  ought  to  abide  by  the 
result ;  [j')  and  a  new  trial  is  never  granted  where  the  party 
has  been  guilty  of  neglect  in  not  coming  prepared  with 
evidence,  which  he  knew  to  exist,  and  might  have  pro- 
duced at  the  trial,  or  in  not  going  into  the  examination  of 
the  evidence,  {k)     But  if  the  attendance  of  a  material  wit- 

{d)  49III.  253;  2  Brachvell,  365. 

(e)  26  111.  434. 

(/)  I  Cal.  iSo.     See  4  Scam.  456;  6  Pick.  478. 

(^)  14  111.  139.     See  23  III.  335 ;  79  H'-  594- 

(/z)  35  111.  416;  I  Gra.  &  Wat.  N.  T.  210;  3  Id.  1067  ci  siq.;  71  111.  273. 

(/)  7  Mass.  205. 

(/)  2  Salk.  645;  6  Mod.  22. 

i^k)  7  Johns.  306. 


8o6  NEW  TRIALS. 


Surprise. 


ness  on  one  side  is  prevented  by  the  fraud  or  misconduct 
of  the  other  party,  a  new  trial  will  be  granted.  (/) 

A  want  of  recollection  of  a  fact  by  a  party,  which  by  due 
attention  might  have  been  remembered,  is  not  a  ground  for 
granting  a  new  trial,  [m)  So,  it  is  said,  if  a  witness  has, 
from  want  of  attention  or  from  not  being  prepared,  made  a 
mistake  in  giving  his  evidence,  a  new  trial  will  not  be 
granted,  because  this  would  be  extremely  dangerous  in  its 
consequences,  {n)  But  in  other  cases  this  rule  is  denied, 
and  it  is  laid  down  that  if  a  party  is  nonsuited  by  the  mis- 
take of  a  witness  in  a  material  part  of  his  testimony,  a  new 
trial  ought  to  be  granted,  [o) 

A  motion  for  a  new  trial,  on  account  of  the  absence  of 
a  material  witness,  should  be  supported  by  the  affidavit  of 
the  witness,  or  some  excuse  should  be  shown  for  not  pro- 
ducing it.  {f) 

If  the  testimony  of  witnesses,  which  occasioned  a  ver- 
dict, was  founded  upon,  or  derived  credit  from,  particular 
circumstances,  and  those  circumstances  are  afterwards 
clearly  shown  not  to  have  existed,  a  new  trial  will  be 
granted,  {q) 

lo.  Sitrf7-ise. — Where  a  part}^  has  been  vigilant  in  pre- 
paring for  trial,  using  every  reasonable  precaution,  and  is 
taken  by  surprise  by  the  introduction  of  evidence  which  he 
could  not  reasonably  have  anticipated,  and  which  he  can 
overcome  on  another  trial,  such  evidence  contributing  to  an 
unfavorable  verdict,  he  will  be  entitled  to  a  new  trial,  (r) 

The  surprise  must  be  in  an  essential  matter,  and  produce 
injury,    and  must  not  be  the  consequence  of  the  party's 


(/)  2  Salk.  647,  653;  Stra.  691 ;   i  Wils.  98;  i  T.  R.  84;  3  T.  R.  113. 

(;^)  7  Mass.  205. 

(«)  2  Caine,  129;  Saj.  27. 

(o)  2  Anst.  517;  Say.  28;  5  Taunt.  277;  i  Bing.  145. 

if)  35  III.  416. 

{jq)  I  Bos.  &  Pul.  427. 

\r)  36  111.  162. 


NEW  TRIALS.  807 


Statutory  provisions  in  Illinois. 


own  neglect  or  inattention ;  and  all  reasonable  efforts  must 
be  made  to  overcome  the  evidence  which  works  the  sur- 
prise. (5) 

Statutory  provisions  in  Illinois. — "Whenever  an 
entire  verdict  shall  be  given  on  several  counts,  the  same 
shall  not  be  set  aside  or  reversed  on  the  ground  of  any 
defective  count,  if  one  or  more  of  the  counts  in  the  decla- 
ration be  sufficient  to  sustain  the  verdict." 

"If  either  party  may  wish  to  except  to  the  verdict,  or 
for  other  causes  to  move  for  a  new  trial,  or  in  arrest  of 
judgment,  he  shall,  before  final  judgment  be  entered,  or 
during  the  term  it  is  entered,  (/)  by  himself  or  counsel,  file 
the  points  in  writing,  particularly  specifying  the  grounds 
of  such  motion ;  and  final  judgment  shall  thereupon  be 
stayed,  until  such  motion  can  be  heard  by  the  court."  (The 
motion  should  be  made  before  judgment  is  rendered,  al- 
though by  the  statute  the  "  points  "  may  be  filed  at  any  time 
during  the  term.) 

A  verdict  may  not  be  set  aside  for  irregularity  only,  un- 
less cause  is  shown  therefor  during  the  term  in  which  the 
verdict  is  rendered. 

No  more  than  two  new  trials  of  a  cause  may  be  granted 
to  the  same  part3S  on  the  same  grounds,  {ti) 

In  all  cases  where  a  new  trial  is  granted  on  account  of 
improper  instructions  given,  or  improper  evidence  admitted, 
or  because  the  verdict  is  against  the  weight  of  the  evidence, 
"or  for  any  other  cause  not  the  fault  of  the  parly  apply- 
ing," it  is  to  be  without  costs,  and  as  of  right. 

Where  a  cause  is  tried  by  the  court,  without  a  jury,  ex- 
ception may  be  taken  to  any  decision  of  the  court,  "whether 
such  exception  relates  to  receiving  improper,  or  rejecting 


(s)  45  111.  311.     See  4S  111.  46S;  26  111.  434;  2  Gilm.  390;  4  Blackf.  307; 
6Ind.  407;  72  111.  183;  76  111.  319;  72  111.  1S3. 
(/)  See  26  111.  64. 
(m)  See  53  111.  479;  Rev.  Stat.  (1877)  'J\\. 


8o8  NEW  TRIALS. 


Motion  for  new  trial. 


proper  testimony,  or  to  the  final  judgment  of  the  court  upon 
the  law  and  the  evidence."  (v) 

Mode  of  applying  for  a  new  trial. — Application  for 
a  new  trial  is  made  by  motion,  which  should  be  in  writing ; 
and  in  Illinois,  as  above  mentioned,  written  specifications 
of  the  grounds  of  the  motion  are  required  to  be  riled.  Such 
motion,  and  the  reasons  therefor,  may  be  framed  as  fol- 
lows : 

N'o.  344.     Blotion  by  defendant  for  nczv  trial. 

In  the Court. 

Term,  iS— . 

C.  D.  ^ 

ats.      >  Assumpsit. 

A.  B.  )  And  now  comes  the  defendant,  by  his  attorney 
aforesaid,  and  moves  the  court  to  set  aside  the  verdict  ren- 
dered, and  to  grant  a  new  trial,  in  this  cause. 

And  for  grounds  of  his  motion  the  defendant  shows  to 
the  court  the  following,  to  wit : 

1.  The  court  admitted,  on  the  trial,  improper  evidence 
on  the  part  of  the  plaintiflf,  that  is  to  say,  [here  sfecify  such 
evidence^. 

2.  The  court  refused  to  admit  proper  evidence  offered  by 
the  defendant,  that  is  to  sa}^  {Jicrc  specify  the  evidence^. 

3.  The  court  improperly  gave  to  the  jur}^  the  second ^ 
fotirtJi  -Aw^.  fifth  instructions  asked  by  the  plaintiflT. 

4.  The  verdict  is  contrary  to  the  law  and  the  evidence  in 
the  case. 

{Any  other  grounds  may  he  specified  in  like  manner i) 
G.  H.,  Attorney  for  Defendant. 

A  motion  for  a  new  trial  should  be  made  before  a  motion 
in  arrest  of  judgment,  as  the  latter  is,  strictly  speaking,  a 
waiver  of  the  former.  \%v) 

Where  the  cause  is  tried  by  the  court,  without  a  jury,  it 
is  not  necessary  that  a  motion  for  a  new  trial  should  be 

[v)  2  Starr  &  Curtis'  An.  Stat.  1826;  Rev.  Stat.  (1877)  74I. 
\w)  27111.  411,     See  40  111.  122;  21  111.  App.  Ct.  5SS. 


NEW  TRIALS.  S09 


Setting  nside  defrailt,  etc. 


made,  in  order  that  the  evidence  in  the  cause  may  be  re- 
viewed in  the  Supreme  Court,  (.v)    'UA^'tCvr^  v.ut.«,*xa^ <uw    •/  ^'-^'~' 

Setting  aside  default,  and  granting  new  trial. —  6'^  "  ^?/* 
The  law  intends  that  every  one  shall  have  a  fair  trial ;  and 
if  a  party,  b}'  misfortune  or  accident,  without  any  fault  on 
his  part,  has  been  unable  to  present  his  defense  before  a 
default  is  taken,  the  court  will,  on  a  proper  case  shown  by 
ailidavit,  set  aside  the  default,  and  grant  a  hearing  on  the 
merits,  on  such  terms  as  the  justice  of  the  case  may  require. 
The  terms  usually  imposed,  in  such  case,  are  the  payment 
of  costs. 

The  statute  of  Illinois  {y)  provides,  that  "the  court 
may,  in  its  discretion,  before  final  judgment,  set  aside  any 
default  upon  good  and  suflicient  cause,  upon  affidavit, 
upon  such  terms  and  conditions  as  shall  be  deemed  reason- 
able." 

An  application  to  set  aside  a  default  is  addressed  to  the 
discretion  of  the  court,  and  the  decision  thereon  can  not  be 
assigned  for  error,  [z)  unless  there  has  been  a  gross  abuse 
of  such  discretion,  [a) 

The  application  must  be  made  in  apt  time.  It  is  too  late 
to  apply  after  a  term  of  the  court  has  intervened  betw^een 
the  term  at  which  the  default  was  taken  and  that  at  which 
the  motion  is  made,  without  showing  a  good  reason  for  such 
delay,  {h) 

The  party  making  application  to  have  a  default  set  aside 
must  support  it  by  an  affidavit,  showing  that  the  default  was 
taken  without  any  fault  or  negligence  on  his  part,  and  that 
there  is  merit  in  his  defense,  stating  what  such  defense  is, 


Sio 


NEW  TRIALS,  | 


Setting  asifie  default,  etc. 


SO  that  the  court  may  see  whether  it  is  sufficient,  (c)  The 
application  should  be  made  at  the  term  at  which  the  de- 
fault is  entered,  {d) 

The  fact  that  counsel,  whom  the  defendant  supposed  he  had 
engaged  to  make  his  defense,  failed  to  do  so,  does  not  make 
it  imperative  on  the  court  to  set  aside  a  default  entered  against 
him,  when  there  was  time  for  him  to  have  given  his  personal 
attention  to  his  defense,  (^'i 

(c)  18  111.  548;  86  111.  182;  85  111.  582;  73  111.  570. 

(d)  41  III.  452;  51  111.  232.     See  24  111.  295;  26  111.  186. 
(^)  S9  111.  113;  73  111.  293;  85  III.  582. 


I 


t-UJ\_     C-O 


^   A:^  Y^.^.^^aSu  VuXx„  ,...X^^  yUArtiZ^^  Ui^i^rU^  aj.     ic  t^'-fU^ 


ARREST  OF  JUDGMENT.  Sii 

Wlicn  judgment  will,  or  will  not,  be  arrested,  etc. 


CHAPTER    XXVITI. 

ARREST    OF  JUDGMENT. 

When  there  is  some  intrinsic  defect  apparent  on  the  face 
of  the  record,  which  would  render  a  judgment  in  the  cause 
erroneous,  the  court  will,  on  motion,  arrest  the  judg- 
ment, (a)  The  objection  must  however  be  one  of  sub- 
stance. All  formal  objections  are  cured  by  the  statute  of 
amendments  and  jeofails.  Formerly,  judgments  were  con- 
stantly arrested  for  matters  of  m.ere  form,  but  this  abuse  has 
long  since  been  remedied,  (d) 

After  the  overruling  of  a  demurrer  to  the  declaration,  a 
motion  in  arrest  of  judgment,  for  a  defect  in  the  declaration, 
ought  not  to  be  entertained,  (c)  It  is  otherwise  on  a  de- 
I'ault,  in  which  case  judgment  may  be  arrested  for  any  sub- 
stantial defect  in  the  declaration,  [d) 

A  defendant  can  not  have  an  arrest  of  judgment  for  any 
thing  lie  might  have  pleaded  in  abatement;  (c)  as  for  in- 
stance, an  irregularity  in  the  service  of  a  writ,  or  the  v/ant 
of  an  indorser  of  the  writ,  (y)  or  because  the  writ  bears 
icsU  of  a  justice  who  is  a  party  to  the  suit,  {g") 

According  to  the  strict  rules  of  practice,  a  motion  in  ar- 
rest of  judgment  is  a  waiver  of  a  motion  for  a  new  trial. 

(rt)  2  Scam.  514;  50  III.  436;  r  Salk.  77;  i  Ld.  Rajm.  233.  See  37 
111.  1S6;  53  III.  366;  64  111.  52S;  61  111.  482. 

(i)  Sec  Steph.  PI.  96,  146,  150;  52  111.  236;  70  111.  438. 
(c)  2  Gilm.  99;   I  Stra.  425  ;  6  Taunt.  630;  2  Marsh.  326;  77  III.  68. 
</)  3  Scam.  259;   I  Stra.  245;  6  Moore,  209;   I  Caine,  104;  73  111.  152. 
(e)  2  Tidd's  Pr.  819. 
(/)  5  Mass.  97. 
(^)  7^I''iss.  J09. 


Si 2  ARPvEST  OF  JUDGMENT. 

When  judgment  will,  or  will  not,  be  arrested,  etc. 

A  party  who  has  made  both  motions,  and  calls  up  his 
motion  in  arrest,  and  has  it  disposed  of,  and  then  allows 
judgment  to  be  rendered  without  directing  the  attention  of 
the  court  to  his  motion  for  a  new  trial,  will  be  held  to  have 
waived  the  latter,  {k) 

Where  unnecessary  allegations  are  made  in  a  declara- 
tion, which  are  irrelevant,  they  will  be  rejected  as  surplus- 
age. After  a  general  verdict,  judgment  will  not  be  ar- 
rested because  of  such  faulty  allegations.  (/) 

Where  there  are  several  counts  in  a  declaration,  and 
some  of  them  are  bad,  upon  a  general  verdict  judgment 
will  be  arrested.  (/)  The  verdict,  however,  may  be 
amended  by  the  judge's  notes,  so  as  to  apply  to  the  good 
count ;  and  it  is  not  too  la^e,  on  the  motion  in  arrest  of 
judgment,  for  the  plaintiff  to  move  for  such  amendment,  {k) 
In  Illinois,  it  is  provided  by  statute,  that  "  whenever  an  en- 
tire verdict  shall  be  given  on  several  counts,  the  same  shall 
not  be  set  aside  or  reversed  on  the  ground  of  any  defective 
count,  if  one  or  more  of  the  counts  in  the  declaration  be 
sufficient  to  sustain  the  verdict ;"  (/)  and  it  is  held,  that 
when  there  is  a  good  count  in  the  declaration,  to  support 
the  judgment,  a  motion  in  arrest  can  not  prevail,  {in) 

In  an  action  of  replevin,  where  several  pleas  are  pleaded, 
laying  the  property  in  different  persons,  a  general  verdict 
for  the  defendant,  on  all  the  pleas,  is  bad,  and  judgment 
will  be  arrested.  (;/) 

If  an  action,  local  in  its  nature,  is  brought  in  a  wrong 
county,  (c)  or  if  case  is  brought,  when  the  action  should  be 

(//)  27  111.  411. 

(x  )  14  111.  301.  See  2  Mass.  2S3;  8  S.  &  R.  124;  2  Johns.  2S3;  i  Chit 
PI.  209-211 ;  Steph.  PI.  424.  86  III.  176. 

(/)  2  Mass.  50,  406;  7  Mass.  358;  15  Mass.  374;  9  Pick.  546;  i  Ohio,  60; 
2  Ohio,  204.     See  4  Bradw.  94. 

{k)  9  Cow.  151 ;  II  Johns.  loO;  I  John=^.  506. 

{I)  2  Starr  &  Curtis'  An.  Stat.  1822;  112  U.  S.  604;  3  Scam.  9I. 

(;;/)   I  Gilm.  390;  72  111.  1 72. 

(n)  7  Ohio,  232. 

{0)  7  Mass.  353. 


ARREST  OF  JUDGMENT,  813 

Time  and  manner  of  moving  in  arrest. 


trespass,  (^)  judgment  may  be  arrested.  If  there  is  a 
misjoinder  of  counts,  the  declaration  will  be  bad  on  a 
motion  in  arrest ;  but  if  a  count  is  stricken  out,  by  leave  of 
the  court,  it  will  be  considered  as  if  never  inserted,  [q) 

The  statute  of  Illinois  provides,  that  "  when  judgment 
shall  be  arrested  for  any  defect  in  the  record  of  proceed- 
ings after  the  first  process,  the  plaintiff  shall  not  be  com- 
pelled to  commence  his  action  anew ;  but  the  court  shall 
order  new  pleadings  to  commence  with  the  error  that 
caused  the  arrest."  {r) 

Time  and  manner  of  moving  in  arrest. — A  motion  in 
arrest  of  judgment  is  made  after  verdict,  or  default,  and 
before  judgment  is  rendered.  (5)  The  motion  should  be  in 
writing  ;  and  the  statute  of  Illinois  provides,  that  the  party 
moving  "  shall,  before  final  judgment  be  entered,  or  during 
the  term  it  is  entered,  by  himself  or  counsel,  file  the  points 
in  writing,  particularly  specifying  the  grounds  of  such  mo- 
tion." (/)     See  New  Trials,  «w/^. 

(/)   2  Ohio,  169. 

{(])  4  Mass.  146,     See  l  Chit.  PI.  1S7,  188;  4  Bradw.  94. 

(r)  2  Starr  &  Curtis'  An.  Stat.  1822;  Rev.  Slat.  (1877J  741. 

(s)  5  T.  R.  436,  455;  2  Stra.  483,  845. 

{t)  2  Starr  &  Curtis'  Aq.  Stat.  iS|^;  Rev,  Stat.  (1877)  74I. 


Si4  JUDGMENTS. 


Nature  and  kinds  of  judgments. 


CHAPTER   XXIX. 


JUDGMENTS. 


A  JUDGMENT  in  law  is  a  solemn  determination  of  a  ques- 
tion, declared  by  a  court.  The  language  used  in  a  judg- 
ment is,  that  "it  is  considered  by  the  court,"  etc.,  the 
theory  being  that  the  function  of  the  court  is  not  to  give  its 
own  decision,  but  to  ascertain  and  pronounce  the  decision 
of  the  law.  To  give  validity  and  full  force  to  a  judgment, 
the  court  which  renders  it  must  have  competent  jurisdiction 
over  the  cause,  or  be  authorized  by  law  to  entertain  and 
determine  the  question  which  it  decides ;  the  cause  must 
have  been  properly  brought  before  the  court ;  and  the  trial 
must  have  proceeded  with  due  regard  to  all  those  forms 
which  are  established  by  law,  to  prevent  surprise,  neglect, 
or  error. 

Judgments  are  either  inicrloaUory  or  final.  The  former 
are  such  as  are  given  during  the  progress  of  a  suit,  upon 
some  plea,  proceeding,  or  default,  which  is  only  interme- 
diate, and  does  not  finally  determine  or  complete  the  suit — 
as  in  the  action  of  account^  that  the  defendant  account ;  or 
where  there  is  a  default,  and  a  writ  of  inquiry  awarded, 
etc.  The  latter  are  such  as  at  once  put  an  end  to  the  ac- 
tion. They  are  the  sentence  of  the  law,  given  by  the 
court — as  that  the  plaintiff  recover  his  damages  and  costs ; 
or,  if  for  the  defendant,  that  the  plaintiff  take  nothing  by 
his  writ,  and  that  the  defendant  recover  his  costs,  and  some- 
times also  his  debt  or  damages,  where  he  has  pleaded  a 
set-off. 

Judgments  may  also  be  divided  into  four  kinds  :  Firsts 
where  both  the  facts  and  the  law  arisinsf  thereon  are  3d- 


JUDGMENTS.  Si; 


Judgment  by  default — Assessment  of  damages  by  court. 

mitted  by  the  defendant,  as  charged  in  the  plaintiff's  decla- 
ration ;  as  in  cases  of  judgment  by  confession  or  default. 
Second.,  where  the  plaintiff  is  convinced  that  the  facts,  or 
the  law,  or  both,  are  not  sufficient  to  support  his  action,  and 
he  therefore  abandons  his  suit ;  as  in  cases  of  nonsuit  or 
retraxit.  Third,  where  the  facts  are  confessed  by  the 
parties,  arid  the  law  determined  by  the  court;  as  in  cases 
of  judgment  upon  demurrer.,  or  an  agreed  statement  of 
facts.  FouriJi,  where  the  law  is  admitted  b}^  the  parties, 
and  the  facts  disputed  ;  as  in  the  case  of  judgment  on  a 
verdict,  {a) 

I.  Judgment  by  default. — Wiien  the  defendant  fails  to 
appear  and  make  a  proper  defense,  a  judgment  may  be 
taken  against  him  b\^  default.  Before  doing  so,  however, 
the  plaintiff  should  examine  the  writ,  and  see  that  it  is  in 
due  form,  and  properly  attested  ;  and  also  the  return  of  the 
sheriff,  to  ascertain  whether  proper  service  has  been  made, 
and  whether  the  return  is  in  due  form.  If  the  return  is 
insufficient,  the  court  will,  on  motion,  permit  the  offixer  to 
amend  it.  ip) 

Assessment  of  damages  by  the  court. — The  statute  of 
Illinois  provides,  that  "  in  all  suits  in  the  courts  of  record 
in  this  state,  upon  default,  where  damages  are  to  be  as- 
sessed, it  shall  be  lawful  for  the  court  to  hear  the  evidence 
and  assess  the  damages,  without  a  jury  for  tiiat  purpose . 
In  all  cases  where  interlocutory  judgment  shall  be  given  in 
any  action  brought  upon  a.  penal  bond,  or  upon  any  instru- 
ment in  writing,  for  the  payment  of  money  only,  and  the 
damages  rest  in  computation,  the  court  may  refer  it  to  the 
clerk,  to  assess  and  report  the  damages,  and  may  enter  judg- 
ment therefor ;  provided,  that  either  party  may  have  the  dam- 
ages assessed  by  a  jury."  [c] 

{a)  See  3  Bla.  Com.  396;  Howe's  Pr.  265. 
[h)  3  Gilm.  149;  2  Gilm.  581  ;  82  111.  82  ;  III  111.  309. 

{c)  2  Starr  &  Curtis'  An.  Stat,  1S07;   Kev.  btat,  {i^Tj)  739;  9S  111.  507;  S9 
111.  277. 


:>- 


8i6  JUDGMENTS. 


Judgment  hy  default — Writ  of  inquiry. 


JVrii  of  inquiry . — Inquisitions  of  damages  are  generally 
taken,  in  Illinois,  in  open  court ;  (r/)  but  a  writ  of  inquiry 
may  be  directed  to  the  sherifF  of  the  county,  to  be  executed 
in  vacation,  {e)  If  it  appears  that  an  important  question 
of  law  will  arise  on  the  execution  of  the  writ,  the  court  will 
order  it  to  be  executed  in  open  court.  (_/")  The  writ 
may  be  executed  by  the  sheriff  at  any  place  within  the 
county.  ( »•)  If  any  irregularity  occurs,  such  as  want  of 
notice,  etc.,  the  proper  course  is  to  move  the  court,  upon 
affidavit  of  the  facts,  to  set  aside  the  inquest;  (/;)  and  the 
insufficiency  of  the  writ  can  not  be  assigned  for  error,  the 
proper  practice  being  to  move  the  court  wherein  the  suit  is 
pending  to  quash  it.  (/)  The  sherifF,  in  executing  the  writ, 
acts  ministerially,  and  not  judicially.  (_/') 

In  the  assessment  of  damages  on  a  writ  of  inquiry,  the 
defendant  may  cross-examine  or  introduce  witnesses,  to 
reduce  the  amount  claimed  ;  and  if  the  inquest  is  taken  in 
open  court,  he  may  have  the  jury  instructed  as  to  the  law ; 
and  he  may  take  a  bill  of  exceptions,  or  may  move  to  set 
aside  the  inquest,  upon  affidavit  showing  the  evidence,  {li) 

When  a  party  is  dissatisfied  with  an  assessment  of  dam- 
ages on  default,  he  should  file  an  affidavit  showing  all  the 
evidence  heard,  and  move  to  set  aside  the  inquest,  or  the 
default  and  inquest ;  and  in  case  the  court  denies  the  mo- 
tion, it  seems  the  decision  ma}''  be  reviev/ed  on  error.  (/) 

The  defauit  of  the  defendant,  as  well  as  his  failure  to 
plead  over  after  a  dem.urrer  has  been  overruled,  admits  the 
cause  of  action,  but  not  the  amount  of  damages  claimed  in 

(<f)  Breese,  20.     See  27  111.  71. 

(d)  27  111.  71 ;  I  Scam.  233. 

(/)  2  Johns.  107;  Tidd's  Pr.  513;  4  Term,  275;  2  Bos.  &  Pul.  55. 

\g)  I  Scam.  233;  27  111.  71. 

{h)  I  Scam.  233 ;  3  Gilm.  149, 

(»•)  3  Gilm.  149. 

(/)  2  Johns.  63;  I  Scam.  233. 

(>^)  See  16  III.  522,  71 ;  i  Scam.  215,  543. 

(/)  16  111.  71.     See  I  Scam.  233. 


JUDGMENTS.  817 


Judgment  by  default. 


the  declaration ;  and  the  amount  of  damages  may  be  liti- 
gated upon  the  writ  of  inquir}^  {1:1)  A  default  precludes 
the  defendant  from  questioning  the  validity  of  an  indorse- 
ment of  a  note  on  which  he  is  sued.  («) 

Where  too  large  a  judgment  has  been  rendered  against 
a  defendant,  by  default,  (but  less  than  the  amount  claimed 
in  the  declaration,)  he  should  apply  by  motion  to  the  court 
rendering  the  judgment,  to  correct  the  mistake.  After  a 
considerable  delay,  it  will  not  be  corrected  on  error,  [o) 

A  judgment  by  default  will  not  be  regular  unless  the  de- 
fendant has  been  duly  served  with  process.  It  should 
appear  from  the  return  that  the  writ  has  been  served,  and 
when,  and  on  whom,  (^)  and  that  the  service  was  in  due 
time.  ((/) 

When  a  defendant  has  pleaded,  the  plainti/T  has  no  right 
to  have  him  called,  and  take  judgment  by  default;  (r)  and 
where  the  record  shows  that  a  plea  was  filed,  and  a  judg- 
ment by  default  rendered,  on  the  same  day,  the  judgment 
will  be  reversed,  (s) 

It  is  erroneous  to  proceed  to  judgment  by  default  against 
one  or  more  of  several  joint  defendants,  without  a  final  dis- 
position of  the  cause  as  to  the  others ;  and  where  one 
pleads,  the  cause  should  be  tried  before  a  rendition  of  final, 
judgment  against  the  others,  (t)  And  where  two  are  jointly 
sued,  and  are  served  with  process,  and  one  pleads,  and 
procures  a  change  of  venue,  and  the  other  makes  default, 
it  is  error  to  take  judgment  against  the  defendant  in  default 
alone,  (u) 

(m)  7  Ind.  406;  4  Blackf.  466.  See  16  111.  522 ;  27  III.  15. 

(«)  26  111.  84. 

(o)  28  111.  436.  See  33  III.  3S8. 

(/)  See  23  111.  572;  24  111.  227;  I  Scam.  239;  3  Scam.  152. 

0/)  3  Scam.  153. 

(O  I  Scam.  390,  534. 

(s)  1  Scam.  3S7. 

(/)  4  Scam.  361 ;  i  Scam.  552.  See  ^;i  111.  51S. 

(«)  4  Scam.  338,  361. 


8i8 


JUDGMENTS. 


Judgment  of  nonsuit  etc. 


2.  yudginciit  of  iionsiu't,  etc. — ^Judgment  of  nonsuit 
may  pa.ss  against  the  plaintiff',  when,  on  the  trial,  he 
abandons  his  suit.  By  statute  in  Illinois,  if  the  plaintiQ' 
desires  to  take  a  nonsuit,  he  must  do  so  before  the  jury 
retires  from  the  bar;  (v)  and  it  is  held  that  when  a  cause 
is  tried  by  the  court,  without  a  jur}",  a  nonsuit  may  be 
taken  at  any  time  before  the  court  notes  down  the  find- 
ing- (^^) 

If  after  issue  is  joined,  the  plaintiff  neglects  to  bring 
such  issue  on  to  be  tried  in  due  time,  as  limited  by  the 
course  and  practice  of  the  court,  judgment  will  also  be 
given  against  him  for  his  default ;  and  this  is  called  a  judg- 
ment as  in  case  of  nonsuit,  (a-) 

A  nonsuit  is  not  regarded  as  a  confession  by  the  plaintiff 
that  he  has  no  cause  of  action,  for  the  judgment  in  favor 
of  the  defendant  is  no  bar  to  a  second  action  for  the  same 
cause-  {y) 

Judgment  may  also  be  given  against  the  plaintiff  for  not 
declaring,  or  replying,  etc.  ;  and  these  are  called  judg- 
ments Q){  nan  ^ros.  {iion  proscqtiiiti?'.)  So  if  he  chooses, 
at  any  stage  of  the  action,  after  appearance  and  before 
judgment,  to  say  that  he  "  will  not  further  prosecute  his 
suit,"  or  that  he  "  withdraws  his  suit,"  or  (in  case  of  a  plea 
in  abatement)  prays  that  his  "writ"  or  "declaration" 
"  may  be  quashed,"  that  he  may  resort  to  a  better  one, — 
.here  is  judgment  against  him  of  nolle  ^prosequi,  retraxit^ 
or  cassetur  breve,  or  narraiio,  in  these  cases  respect- 
ively, {z) 

In   cases  of  nonsuit  or  non  pros.,  the  plaintiff  m.ay  be 

(y)  Rev.  Stal.    (1S74)   7S1 ;  Rev.  Stat.  (1S77)    740.     See  3  Bia.   Com.  376; 
Steph.  PI.  109;   12  Mass.  47;  2  Scam.  261  ;  34  111.  429. 
(tc)  17  111.  494;  24  111.  464. 
(.V)  Steph.  PI.  109. 
O)  3  Bla.  Com.  376. 
{z)  Steph.  PI.  109. 


JUDGMENTS.  S19 


Judgment  on  demurrer  and  verdict — Form  _.*  judgment,  et;. 

called,  and  his  default  entered,  in  like  manner  as  where  a 
defendant  makes  default,  as  above  mentioned. 


3.  yiidgment  on  devuirrcf'. — ^Judgment  for  the  plaintiff ^ 
on  demurrer  to  a  plea  in  abatement,  or  to  a  replication  to 
such  plea,  is  merely  that  the  defendant  answer  over — 
respondeat  ouster,  {a)  And  in  all  other  cases  of  demurrer, 
in  actions  sounding  in  damages,  the  judgment  for  the 
plaintiff  is  interlocutory  merely,  until  the  damages  are 
assessed,  which  assessment  is  'made  in  the  same  manner 
as  has  been  shown  in  tlie  case  of  a  default,  when  -final 
judgment  is  given.  Judgment  for  the  defendant,  on  de- 
murrer, is  in  all  cases  final,  {b) 

Except  in  the  case  of  a  decision  for  the  defendant  on 
demurrer  to  a  plea  in  abatement,  or  to  a  replication  to  such 
plea,  the  courts  in  Illinois  usually  grant  leave,  if  asked,  to 
the  party  against  whom  the  decision  on  the  demurrer  is 
made,  to  plead  over,  or  amend,  as  the  case  may  be.  {c) 

4.  'Jtidgment  on  'verdict. — On  a  verdict,  the  judgment, 
whether  for  the  plaintiff  or  the  defendant,  is  final — the  jury 
at  the  same  time  trying  the  issue  and  assessing  the  dam- 
ages, if  any  are  given. 

Form  of  jtidomcnt^  etc. — A  judgment  for  ^\q  ■plaintiff 
(except  respondeat  07t-ster)  always  follows  the  nature  of  the 
action.  In  actions  of  assumpsit,  covenant,  trespass,  and 
-he  like,  in  which  damages  only  are  demanded,  the  judg- 
ment for  the  plaintiff  \<.  that  he  recover  his  damages,  as 
lound  by  the  verdict,  (or  in  case  of  demurrer  or  default, 
that  he  ought  to  recover,  etc.,  and,  after  the  assessment, 
that  he  recover,  etc.,)  together  with  his  costs.  In  actions 
ot  debt,  the  judgment  is  that  he  recover  his  debt,  and  dam- 

(«)  A/Uc,  p.  149;  Steph.  PI.  105;  12  111.  49. 

(Z>)  Steph.  PI.  107. 

(.c)  See  sec.  23,  111.  prac.  act 


820  JUDGMENTS. 


Form  of  judgment,  etc. 


ages,  if  any,  and  costs.  The  proper  form  of  a' judgment 
for  the  plaintiff,  in  an  action  of  debt  on  a  penal  bond  con- 
ditioned for  the  performance  of  covenants,  is  that  he  re- 
cover the  amount  of  the  debt,  to  be  discl^arged  by  the  pay- 
ment of  the  damages  and  costs,  {d)  In  ejectment,  the 
entry  is  that  he  recover  the  premises  demanded  in  tlie  dec- 
laration, and  costs,  etc.  In  all  cases,  if  the  defendant  pre- 
vails, he  recovers  his  costs  merely  (except  where  he  has 
pleaded  and  proved  a  set-off  larger  than  the  am.ount  due 
to  the  plaintiff,  in  which  c«ise  the  defendant  is  entitled  to 
judgment  for  the  excess,  as  well  as  for  his  costs)  ;  and  if 
the  issue  arises  on  a  plea  in  abatement  of  the  writ,  etc., 
the  judgment  is  that  the  writ  be  quashed,  etc.  ;  and  in 
other  cases  the  judgment  is  that  the  plaintiff  take  nothing 
by  his  writ,  and  that  the  defendant  go  thereof  without  day. 
In  replevin,  final  judgment  for  \.h.Q  plaintiff  \s  for  his  dam- 
ages, which  are  usually  nominal,  as  the  goods  demanded 
were  delivered  to  him  on  the  writ,  and  for  his  costs.  For 
the  defendant,  the  judgment  is  in  general  for  a  return  of 
the  goods,  and  for  his  costs.  In  detinue,  the  judgment  is 
in  the  alternative,  that  the  plaintiff  recover  the  goods,  or 
the  value  thereof,  and  his  damages  for  the  detention,  and 
costs,  (c) 

In  no  case  can  a  plaintiff  recover  a  greater  sum  as 
damages  than  he  has  laid  in  his  declaration ;  but  he 
may  remit  the  excess,  and  have  judgment  for  the  resi- 
due.  (/) 

Where  the  jury  finds  a  sufficient  tender  to  have  been 
made,  the  court  should  render  judgment  in  favor  of  the 
defendant  for  costs,  and  give  the  plaintiff  leave  to  take  out 
of  court  the  sum  tendered ;  and  in  such  case  the  jury 
should  not  assess  any  damages,  {g) 

[d)  31  111.  254;  ante,  p.  334,  335  ;  72  111.  71 ;  69  III.  253. 

((?)  See,  as  to  judgts.,  Steph.  PI.  105-111;   i  Chit.  PI.;  i  Ilumphr.  Pr. 

(/)33lH-3S8;37lll-  29- 

(■  ^ )  48  III.  309. 


JUDGMENTS.  821 


Form  of  judgment,  etc. 


In  a  qui  tarn  action  on  a  statute,  giving  half  of  the  pen- 
alty to  the  informer,  a  judgment  against  the  defendant 
should  be  for  the  recovery  of  the  debt,  one-half  to  the 
People  and  one-half  to  the  informer,  and  should  a'vard 
execution  in  that  form.  (/;) 

'«)S4lI1.356.    See  50  111.  48. 


822 


CONFESSION  OF  JUDGMENT. 


Mode  of  proceeding,  etc. 


CHAPTER  XXX. 


CONFESSION    OP^  JUDGMENT, 


IN   ILLINOIS. 


The  statute  of  Illinois  provides  as  follows :  '*  Any  per- 
son, for  a  debt  bona  fide  due,  may  confess  judgment  by 
himself,  or  attorney  duly  authorized,  either  in  term  time  or 
vacation,  without  process.  Judgments  entered  in  vacation 
shall  have  like  force  and  effect,  and  from  the  date  thereof  be- 
come leins,  in  like  manner  and  extent  as  judgnients  entered 
in  term."  (i^) 

The  established  practice,  in  Illinois,  in  cases  of  confes- 
sion of  judgment  in  courts  of  record,  is  to  file  a  declaration 
on  the  cause  of  action,  a  warrant  of  attorney,  (usually  ac- 
companying a  promissory  note,)  with  an  aflidavit  proving 
it,  and  a  plea  of  confession,  or  cognovit,  {b) 

Where  a  judgment  is  entered  in  vacation,  b}^  the  clerk, 
the  proper  papers  should  be  filed  with  him ;  and  these  be- 
come part  of  the  record,  and  a  bill  of  exceptions  is  not  nec- 
essary to  bring  them  before  the  Supreme  Court.  Judg- 
ments confessed  in  vacation,  before  the  clerk,  are  not  judi- 
cial acts.  They  are  merely  conclusions  of  law,  or  con- 
tracts acknowledged  of  record,  (c)  The  clerk  has  no 
power  to  pass  upon  the  sufficiency  of  the  papers  so  filed. 
If  papers  purporting  to  be  in  conformity  to  the  practice  are 
filed,  the  clerk  must  enter  the  judgment;  and  if  they  are 
insufiicient  to  warrant  the  confession,  the  defendant  may 
apply  to  the  court,  when  in  session,  to  have  the  judgment 
vacated  ;  and  from  the  decision  of  the  court  on  that  appli- 


(rt)  2  Starr  &  Curtis' An.' Stat.  1S2S  ;    Rev.   Stat.   (1S77)  742;  78  111.  l^'o, 
627. 

(/;)  See  24  111.  598 ;  34  111,  501 ;  35  111.  255. 

(f)   24  111.  (jT,;  115  111.  93,  112  Hi.  36;  91  III.  571. 


CONFESSION  OF  JUDGMENT.  823 

Proof  of  warrant,  etc. 

cation,  the  parties  may  prosecute  a  writ  of  error  in  the  Su- 
preme Court.  Where  such  judgments  are  confessed  in 
open  court,  it  is  presumed  that  the  authority  to  confess  the 
judgment  was  judicially  passed  upon  by  the  court,  {d)  at 
least  when  the  record  recites  that  due  proof  of  the  warrant 
was  made ;  {e)  but  a  judgment  confessed  in  vacation  cre- 
ates no  such  presumption.  (_/") 

The  declaration  should  correspond  with  the  nature  of  the 
action,  and  may  be  taken  from  the  precedents  already 
oiven.  The  warrant  of  attorney  is  usually  attached  to  the 
note,  or  other  evidence  of  debt,  upon  which  the  confession 
is  to  be  taken.  Although  it  is  usual  to  afiix  a  seal  to  the 
warrant  of  attorney,  it  is  not  necessary  to  do  so.  {g)  The 
proof  of  the  warrant,  etc.,  when  the  judgment  is  confessed 
in  open  court,  may  be  made  orally ;  but  it  is  usual  and 
preferable  even  in  term,  and  necessary  in  vacation,  to  make 
such  proof  by  affidavit,  which  may  be  as  follows : 

JVo.  345.     Proof  of  zuar rant  of  attorney,  etc. 

State  of  Illinois,  ) 

County  of ,       5  5ct.      E.  F.,  of,  etc.,  makes  oath 

and  says,  that  he  knows  CD.,  whose  name  is  subscribed 
to  the  promissory  note  and  warrant  of  attorney  hereto  an- 
nexed, (*)  and  was  present  and  saw  him  sign  the  said  note 
and  warrant,  on  or  about  the  day  the  same  bear  date. 

E.  F. 

Subscribed  and  sworn,  etc. 

If  the  proof  is  only  as  to  the  handwriting,  then  instead 
of  the  words  following  the  asterisk,  in  the  above  form, 
say — "  and  has  seen  him  write,  and  is  acquainted  with  his 
handwriting;  and  tliat  the  signatures,  purporting  to  be 
his,  to  the  said  note  and  warrant,  are  in  the  handwriting  of 
the  said  C.  D." 

{d)   24  111.  598;  34  111.  501  ;  32  111.  44;  60  111.  7S;  90  111.  327. 
(0  35  in.  255,  513;  91  III.  571  ;  117  111.  251. 
(/)  24  111.  93  ;  35  III.  514;  18  Bradw.  94;  117  III.  251. 
{g)   4  Gilm.  411  ;  18  Eng.  C.  L.  209;  Tidd's  Tr.  546.  See  2  N.  II.  520 ;  i 
Scam.  428;  So  111.  185. 


824  v^UiNFESSION  OF  JUDGMENT. 

Cos^uovt't. 

A  promissory  note  was  made  by  H.  &  Brother,  and  a 
power  of  attorney  to  confess  a  judgment  upon  the  note  was 
written  on  the  same  paper,  and  signed  by  one  of  the 
makers  of  the  note  only  ;  on  the  back  of  which  paper  was  this 
afhdavit :  "  C.  P.,  being  first  duly  sworn,  doth  depose  and 
say,  that  he  is  well  acquainted  with  the  handwriting  of 
11.  &  Brother,  and  that  he  believes  the  signatures  to 
the  within  note  and  power  of  attorney  to  be  true  and  gen- 
uine." Tins  was  held  to  be  sufhcient  proof  of  the  execu- 
tion of  the  power  of  attorney  ;  and  a  judgment  against  the 
partner  who  signed  it  was  sustained.  The  court  said  it 
was  imm.aterial  how  the  affiant  acquired  his  knowledge  of 
the  handwritmg  ;  it  was  sufficient  that  he  swore  that  he  Wvis 
well  acquainted  tvith  it.  {h) 

JVo.  345.     Cognovit. 

In  the Court. 

Term,  iS— . 

C.  D.  ^ 
ats.     ^^  Assumpsit, 

A.  B.  )  And  the  said  C.  D.,  defendant,  by  G.  IL,  his 
attorney,  comes  and  waives  service  of  process,  etc.,  and 
confesses  that  the  said  A.  B.,  plaintiff,  on  occasion  of  the 
non-performance  of  the  several  promises  in  the  said  de- 
claration mentioned,  (and  including  the  sum  of  dol- 
lars for  his  reasonable  attorney's  fees  in  this  behalf,)  has 

sustained  damage  to  the  amount  of dollars,  over  and 

above  his  costs  by  him  about  this  suit  expended.  And  the 
defendant  agrees,  that  judgment  may  be  entered  against 
him,  in  this  behalf,  for  that  amount  and  such  costs ;  and 
that  no  writ  of  error  or  appeal  shall  be  prosecuted  on  such 
judgment,  nor  any  bill  in  equity  exhibited  to  interfere  in 
anyinanner  with  the  operation  thereof:  And  he  releases 
all  errors  that  may  intervene  in  the  entering  of  such 
judgment,  or  in  the  issuing  of  execution  thereon,  and  con- 
sents to  immediate  execution  on  such  judgment. 

Courts    of  law   possess    an    equitable  jurisdiction    over 
(/.)  32  111.  39. 


CONFESSION  OF  JUDGMENT.  S25 

Power  of  courts  over  judgments,  etc. 

judgments  entered  by  confession  upon  warrants  of  attor- 
ney, (/)  and  in  proper  cases  will  liberally  exercise  such 
jurisdiction.  {J)  Where  an  application  is  made  for  the 
exercise  of  this  equitable  power,  and  it  clearly  appears 
that  the  plaintiff  was  not  entitled  to  judgment  on  the  bond, 
or  note,  and  warrant  of  attorney,  the  court  will  vacate  the 
judgment,  and  leave  him  to  pursue  the  ordinary  remedy 
by  action ;  but  if  the  case  is  involved  in  doubt,  or  the  tes- 
timony is  so  contradictory  that  the  truth  can  not  be  ascer- 
tained with  reasonable  certainty,  an  issue  may  be  directed 
to  try  the  question — in  other  words,  the  defendant  may  be 
let  in  to  make  a  defense  on  the  merits,  {k)  The  court,  in 
such  case,  will  fully  protect  the  rights  of  the  parties,  by 
staying  all  proceedings  on  the  judgment, -and  permitting  it 
to  stand  as  a  lien  and  security,  until  the  merits  of  the  case 
are  heard  and  determined.  If  the  defense  is  successful, 
the  judgment  falls ;  if  otherwise,  the  judgment  is  to  be 
enforced.  (/) 

Where  the  defendant  had  been  let  in  to  plead,  the  orig- 
inal judgment  standing  as  security,  and  the  amount  thereof 
was  reduced  by  a  verdict,  an  order  of  the  court,  that  only 
the  amount  found  by  the  jury  should  be  made  on  the  ex- 
ecution already  issued,  was  held  to  have  been  properly 
made.  {)n) 

After  a  judgment  was  entered  by  confession,  the  defend- 
ant was  allowed  to  plead,  the  judgment  remaining  as  secu- 
rity to  the  plaintiff.  Pending  the  trial  of  the  issues,  the 
plaintiff  asked  leave  to  take  a  nonsuit,  and  also  moved  the 
court  to  vacate  the  judgment ;  and  it  was  held  that  there 
was  no  reason  why  this  should  not  be  done,  and  that  the 
nonsuit,  to   which  the   plaintiff  had  a  right,  would  have 


(e)  S6  111.  159;  15  111.  353 ;  17  Bradw.  3<?2. 
U)   15  111-  353 ;  31  111-  238  ;  32  111.  3S :  H  111-  465. 

{k)   15  111.  353;  34  III  429;  32  111.  3S.     t^ee  22  111.  203;   115  111.  93; 
Biadw.  521. 

(/)   15  111.  353;  86  111.  159;  69  111  306;  20  Bradw.  3S1. 

{m)  46  111.  2S0;  87  111.  84;  I  Bradw,  113;  115  111.  93;  100  111.  82. 


826 


CONFESSION  OF  JUDGMENT. 


Power  of  courts  over  judgments,  etc. 


operated  to  vacate  the  judgment,  as  that  depended  on  a 
recovery  on  the  issues  made  up.  (;/) 

Where  the  note,  the  warrant  of  attorney,  the  cognovit 
and  the  judgment  all  correspond  in  amount,  a  variance  in 
that  regard  between  the  declaration  and  the  judgment  will 
not  avail  on  a  motion  to  vacate  the  judgment.  And  where 
Ihe  name  of  an  attorney  is  signed  to  a  cognovit  by  another 
person,  without  his  knowledge,  the  cognovit  will  be  held 
valid  until  repudiated  b}^  the  attorney  whose  name  is  signed 
to  it.  {p) 

A  judgment  was  entered  against  the  principal  and  surety 
in  a  note,  by  confession,  upon  a  power  of  attorne}''  ex- 
ecuted by  them,  which  provided  "  that  no  bill  in  equity 
should  be  tiled  to  interfere  in  any  manner  with  the  opera- 
tion of  the  judgment,"  etc.  Afterwards  the  surety  exhib- 
ited his  bill  in  equity,  for  relief  against  the  judgment,  on 
the  ground  that  he  was  released  by  reason  of  the  payee's 
having  extended  the  time  of  payment  to  the  principal 
maker,  before  the  entry  of  the  judgment,  without  the 
assent  of  the  surety.  The  Circuit  Couit  granted  the  relief 
pra3'ed  for,  and  the  Supreme  Court  affirmed  the  decree.  (_^) 

The  court  may  set  aside  a  judgment  by  confession,  on 
motion,  during  the  term  in  which  it  is  rendered;  and  this 
exercise  of  discretion  is  not  a  matter  for  review  in  the 
Supreme  Court ;  {q)  but  a  motion  to  set  aside  a  judgment  by 
confession,  rendered  four  terms  previously,  comes  too  late,  {r) 

If  a  judgment  is  entered,  by  confession,  for  more  than  is 
authorized  by  the  warrant  of  attorney,  application  should 
be  made  in  the  court  Vv'here  the  judgment  was  entered,  to 
correct  it.  In  such  a  case,  the  judgment,  if  within  the  sura 
claimed  as  damages  in  the  declaration,  will  not  be  reversed 
on  error  in  the  Supreme  Court,  before  such  application  has 


(«)  34  111.  429. 

(0)  32  111.  38;  60  III.  7S;  86  111.  185. 

(/)  31  111.  258.  See  73  111.  473i  74  HI.  437- 

(q)   22  111.  203.  See  34  111.  42Q,  501  ;  32  111.  38;  84  111.  465. 

[r)   28  111.  519;  32  111.  38;  8  Brailw.  371. 


CONFESSION  OF  JUDGMENT.  827 


Observatioijc. 


been  made  to  the  court  below.  (5)  The  like  rule  prevails 
in  all  cases  of  mere  irregularity  in  the  entry  of  judgment 
by  confession  ;  and  on  application  to  set  aside  the  judg- 
ment, some  equitable  ground  for  relief  must  be  shown.  (/) 

A  judgment  entered  by  confession  in  vacation,  on  a 
promissory  note,  more  than  a  year  and  a  da}-  after  its  ma- 
turity, will  not  be  set  aside,  or  the  defendant  let  in  to  make 
a  defense,  merely  because  there  was  no  evidence  filed  that 
the  defendant  was  still  living,  and  that  the  debt,  or  a  part 
of  it,  remained  unpaid,  and  no  order  of  a  judge  was  ob- 
tained for  the  entry  of  the  judgment.  In  addition  to  the 
want  of  such  proof,  or  of  an  order  of  a  judge,  it  must 
appear  that  the  defendant  has  a  meritorious  defense.  (:i) 

Where  a  judgment  was  confessed  on  a  note  dated  April 
24,  1S56,  under  a  warrant  of  attorney  authorizing  a  confes- 
sion of  judgment  on  a  note  dated  April  24,  1S46,  it  was 
held  that  the  judgment  was  a  nullity,  {v) 

A  judgment  can  not  be  confessed  on  the  sam.e  da}'  the 
note  and  warrant  bear  date,  although  the  note  is  payable 
on  demand,  {'zt')  or  the  warrant  authorizes  the  entry  of  a 
judgment  at  any  time  after  its  date,  (x) 

A  warrant  of  attorney,  signed  by  one  of  two  partners, 
with  the  partnership  name,  though  not  under  seal,  does  not 
authorize  a  judgment  against  both  partners.  (  r) 

A  judgment  by  confession,  on  a  warrant  of  attorney, 
may  properly  include  attorney's  fees,  if  this  is  authorized 
by  the  warrant,  {z)  But  where  a  promissory  note  contains 
an  agreement  on  the  part  of  the  maker,  that  in  case  suit  is 
brought  on  the  note  he  will  pay  a  certain  sum  as  an  attor- 

(s)  34  111.  501;  44  HI.  133-  See  tS  IlL  273;  73  111.  130. 

(/)  36  111.  79;  38  111.  no;  44  111.  133  ;  17  Bradw.  382. 

(«)  38  111.  90.  See  28  111.  344;  3^  111-  79.  S'o;  '^  Bradw.  516. 

(v)   44  111.  262. 

(w)   28  111.  54. 

{x)   38  111.  159.  See  78  111.  627. 

(;/)  I  Scam.  42S  ;  34  111.  39. 

{z)   38  111.  no. 


S2S  CONFESSION    OF  JUDGMENT. 

Obscrvaii  ns. 

ncy's  fee,  such  sum  is  not  due  till  after  suit  is  brought,  and 
can  not  be  included  in  the  judgment,  [a) 

Where  the  warrant  of  attorney  authorizes  a  confession  for 
amount  due,  "and  a  reasonable  attorney's  fee,"  the  court  must 
determine  the  reasonableness  of  the  fee.  {//) 

An  execution  issued  before  a  judgment  confessed  in  vaca- 
tion has  been  entered  up  by  the  clerk,  is  void,  and  can  not  be 
cured  by  a  subsequent  amendment  of  the  record,  (c) 

The  statute  concerning  sureties  provides,  that  no  surety 
shall  be  suffered  to  confess  judgment,  or  suffer  judgment 
to  go  by  default,  so  as  to  distress  his  principal,  if  the  latter 
will  enter  himself  as  defendant  to  the  suit,  and  tender  to  the 
surety  other  good  and  sufficient  collateral  securitv,  to  be 
approved  by  the  court  in  which  the  suit  shall  be  pend- 
ing, (d) 

Where  a  power  of  attorney  to  confess  a  judgment  on  a 
note,  authorizes  a  confession  of  judgment  at  any  time  after 
the  date  of  the  note,  a  judgment  confessed  before  the  maturity 
of  the  note,  will  be  valid,  [e) 

(a)   29  111.  4.97. 

((5)  117  HI.  251 ;  17  Bradw.  3S5.  See  5  Bradw.  22;  99  111.  620;  97  111. 

147. 

(V)   16  Bradw.  621  ;  91  111.  571  ;  109  111.  15  ;  5  Wend.  109. 
ly)  2  Starr  &  Curtis'  An.  Stat.  2373;   Rev.  Stat.  (1S77)  993. 
(c)  86  111.  185;  11  III.  622.    /3/9(C   2,*}3 

Vo^^     <fvK^L I/.  vVdJU -^  I'kc  ^u  Q/Of 


BILLS  OF  EXCEPTIONS.  829 

When  allowed. 


CHAPTER  XXXL 


BILLS    OF    EXCEPTIONS. 


When  in  the  course  of  the  trial  of  a  cause,  the  judge, 
either  in  deciding  an  interlocutory  question,  or  in  his  charge 
to  the  jury,  mistakes  the  law,  or  is  supposed  to  have  mis- 
taken the  law,  the  counsel  against  whom  the  decision  is 
made  ma}""  tender  an  exception  to  the  opinion  of  the  court, 
and  require  the  judge  to  sign  and  seal  a  bill  of  excep- 
tion, (a) 

In  Illinois,  it  is  provided  by  the  practice-act,  that  "  if, 
during  the  progress  of  any  trial  in  any  civil  cause,  either 
party  shall  allege  an  exception  to  the  opinion  of  the  court, 
and  reduce  the  same  to  writing,  it  shall  be  the  duty  of  the 
judge  to  allow  the  said  exception,  and  sign  and  seal  the 
same ;  and  the  said  exception  shall  thereupon  becom.e  a 
part  of  the  record  of  such  cause."  (d)  Under  this  provision, 
it  is  said,  a  bill  of  exceptions  is  not  to  be  considered  as  a 
writing  of  the  judge,  but  as  a  pleading  of  the  party  alleg- 
ing the  exceptions,  and  is  to  be  construed  most  strongly 
against  him.  (c) 

The  same  act  also  provides,  that  '.'  exceptions  taken  to 
decisions  of  the  court,  overruling  motions  in  arrest  of  judg- 
ment, motions  for  new  trials,  motions  to  amend,  and  for 
continuances  of  causes,  shall  be  allowed  ;  and  the  party 

(a)  See  3  Bl.  Com.  372  ;  7  Serg.  &  R.  178 ;  10  Scrg.  &  R.  1 14 ;  i  Cow.  6:2 ; 
3  Cainc,  16S;  3  Cranch,  29S;  6  Cranch,  226;  17  Johns.  21  <;  3  Wend.  418; 
9  W..nc1.  674;  ro-/  111.  631. 

(i>)  2  Starr  &  Curtis'  An.  Stat.  1822;  Rev.  Stat.  fiSyy)  741  ;  80  Til.  32,  82; 
79  111.  257,  316,  471;  78  111.  292;  7>  111.  92,  151,  493  ;  76  111.  445,  515. 

{c)  3  Scam.  5.     See  113  111.  654;  115  111.  566. 


830  BILLS  OF  EXCEPTIONS. 

Time  10  except — Signing  and  sealing  of  bill,  etc. 

excepting  may  assign  for  error  any  decision  so  ejxcepted 
to."  {d)  Exceptions  to  the  granting  of  such  motions  are 
not  allowed.  (<?) 

Where  a  cause  is  tried  by  the  court,  without  a  jury,  tb.e 
same  statute  provides  that  exceptions  may  be  taken  to  the 
decisions  of  tlfe  court,  and  the  party  excepting  may  assign 
for  error  any  decision  so  excepted  to,  "  whether  such  ex- 
ception relates  to  receiving  improper,  or  rejecting  proper 
testimony,  or  to  the  final  judgment  of  the  court  upon  the 
law  and  evidence."  {f) 

It  is  also  provided  by  the  same  statute,  that  "  exceptions 
t.ikcn  to  decisions  of  any  court  in  this  state,  overruling 
motions  in  arrest  of  judgment,  for  new  trials,  or  for  con- 
tinuances, or  change  of  venue,  shall  be  allowed  in  criminal 
cases,  and  in  penal  and  qui  tain  actions  ;  and  the  parly 
excepting  to  such  decisions  may  assign  the  same  for  error, 
in  the  same  manner  as  in  civil  cases."  (^') 

In  regard  to  applications  for  changes  of  venue,  in  Illi- 
nois, the  court  has,  by  another  statute,  a  discretion  to  grant 
or  refuse  such  applications  in  criminal  causes,  where  the 
offense  is  not  punishable  with  death  ;  {Ji)  but  in  civil  causes 
it  is  otherwise,  and  a  refusal  to  grant  such  an  application 
may  be  assigned  for  error.  (/) 

When  exceptions  must  he  taken — signing  and  sealing  of 
bill,  etc. — A  party,  to  avail  himself  of  an  exception  to  a 
decision  of  the  court,  must  except  at  the  time  the  decision  is 
made,  and  the  bill  must  affirmativel}^  show  that  the  exception 
was  taken  at  that  time  ;  {J)  or  if  the  exception  is  to  the  charge 

(d)  Rev.  Stat.  (1S77)  742;  87  III.  3^;  90  111.  552;  96  111.  475. 

(e)  2  Scam.  78  ;  4  Scam.  309  ;  84  111.   579. 

(/)  2  Starr  &  Curtis'  An.  Stat.  1S26;  Rev.  Stat.  (1S77)  7^11  ;  105  111.  61,  2r7. 

{g)  lb.  1827;  Rev.  Stat.  (1877)  742;  80  III.  32;  77  111.  531. 

{h)  lb.  2456;  Rev.  Stat.  (1877)  1034. 

(0  38111.  30;  47  111-  3^4. 

(y)  II  111.73;  12111.74,87;  13111.85,341,699;  I  Scam.  165,  252;  3 
Scam.  17,  21,  61;  5  Gilm.  453;  25  111.  392;  16  111.  338;  21  111.  636;  ig  HI. 
151;  2  Bradw.  15;  76  111.  285;   74  111.  367;  90  111.  158. 


BILLS  OF  EXCEPTIONS.  S31 

Time  to  except — Signmg  and  sealing  of  bill,  etc. 

of  the  court,  it  must  be  taken  before  the  verdict  is  ren- 
dered. {^)  In  practice,  however,  the  exception  is  merely 
noted  at  the  time,  and  the  bill  is  afterwards  settled.  (/) 

Where  a  bill  of  exceptions  was  filed  two  days  after  judg- 
ment, and  at  the  conclusion  stated,  "  to  all  which  opin.ons 
of  the  court  the  plaintiff  excepts,"  it  was  held  not  to  be 
sufficient,  (in)  The  appellate  court  will  not  presume  that 
an  exception  was  taken  at  the  proper  time,  merely  because 
the  judge  who  tried  the  cause  has  signed  a  bill  of  excep- 
tions, when  the  bill  does  not  show  upon  its  face  that  the 
exception  was  taken  at  the  time  of  the  decision.  («) 

A  bill  of  exceptions  should  be  reduced  to  form,  and 
signed,  during  the  term  in  which  the  cause  is  tried,  except 
in  cases  where  the  counsel  consent,  or  the  court,  by  an 
entry  on  the  record,  directs,  that  it  may  be  prepared  in  vaca- 
tion, and  signed  nunc  pro  tunc;  and  where  counsel  consent 
that  it  may  be  settled  out  of  term,  the  better  practice  is  to 
file  a  written  stipulation,  or  cause  an  entry  to  be  made 
on  the  record,  to  that  effect,  {p)  The  court  may  permit  the 
bill  to  be  filed  at  the  next  term,  but  the  practice  is  not  com- 
mended. (^) 

When  a  party  has  presented  his  bill  of  exceptions  to  the 
judge  within  the  time  prescribed  for  the  filing  thereof,  he 
has  complied  with  the  rule  so  far  as  it  is  in  his  power  to  do 
so,  and  is  not  to  be  prejudiced  because  the  judge  may  not 
actually  sign  the  bill  until  after  the  time  so  fixed  has  ex- 
pired ;  and  the  presumption  is,  where  the  judge  has  signed 

145;  6  Cow.  1S9;  n  Peters,  1S5;  7  Serg.  &  R.  219;  4  Dall.  249;  6  Johns. 
279;  5  Watts,  69;  8  Serg.  &  R.  216.     See  23  111.  416;  24  111.  45. 

(X-)  I  Johns.  312;  I  Mon.  215;  2  Gilm.  285;  5  Watts,  69.  See  39  111. 
370;  44  III.  264.  85  111.  4S1. 

(/)  8  Serg.  &  Rawle,  216;  11  Scrg.  &  Rawle,  270;  Salk-  288;  Bull.  N.  P. 
135;  24  111.  43;  3  Scam.  17. 

(»f)  3  Scam.  61.     See  11  111.  62. 

(n)  II  111.  72.     See  Ii8  111.  443. 

(^)  5  Gilm.  453;  13  111.  664.  See  13  111.  705;  52  111.  109;  13  Wal.  U,  S. 
506;   106  111.  654. 

(/)  4Gilm.  443;  58  111.  152.     See  i  Biadw.  loi;  Si   III.  41. 

DO 


832 


BILLS  OF  EXCEPTIONS. 


Time  to  except — Signing  and  sealing  of  bill,  etc. 


the  bill,  that  he  would  not  have  done  so  unless  it  had  been 
presented  in  due  time.  The  mere  fact  that  the  bill  was  not 
_;f/^J  within  the  prescribed  time,  does  not  rebut  that  pre- 
sumption ;  though  it  may  be  rebutted  by  proof,  {q) 

An  amended  bill  of  exceptions,  filed  in  the  appellate 
court  without  suggesting  a  diminution  of  the  record,  or  ob- 
taining leave  to  file  a  supplemental  record,  and  after  the 
filing  of  the  record  itself,  will  not  be  considered  in  deter- 
mining the  cause,  (r) 

A  seal  is  essential  to  the  validity  of  a  bill  of  excep- 
tions. (5)  It  must  be  signed  and  scaled  by  the  judge  v.  ho 
tried  the  cause  ;  (/)  and  if  he  has  inadvertently  omitted  to 
seal  it,  he  may,  on  motion,  be  permitted  to  do  so,  although 
his  term  of  oflice  has  expired  ;  {ji)  and  if  a  judge  refuses  to 
sign  a  bill  of  exceptions,  properly  presented,  a  mandamus 
will  be  awarded  to  compel  him  to  sign  it.  (f) 

In  a  case  in  Illinois,  where  a  judge  refused  to  sign  a  bill 
of  exceptions,  and  disobeyed  a  mandamus  from  the  Su- 
preme Court,  requiring  him  to  sign  it,  and  then  resigned 
his  oifice,  it  was  held  that  he  could  not  be  compelled  to 
sign  the  bill,  being  no  longer  in  oflice  ;  but  he  was  attached 
and  fined  for  the  contempt,  (w)  And  it  being  understood 
that  the  parties  admitted  the  truth  of  the  bill,  the  court,  on 
motion  of  the  appellant,  ordered  that  it  should  be  taken  and 
considered  as  a  part  of  the  record,  (.v)  In  another  case, 
where  the  counsel  for  a  prisoner  was  arrested  during  the 
trial,  and  the  prisoner  was  thereby  prevented  from  tender- 
ing a  bill  of  exceptions,  the  Supreme  Court  held  that  it 
could  not  grant  him  any  relief  in  the  matter.  (  v) 


(^)  40III.  9S. 

(r)  54  111.  213.  See  62  111.  121;  68  111,  269;  40  111.  102. 
(s)  44  111.  443;  10  Bradw.  262. 

{t)   15  Bradw.  149;  12  Bradw.  255  ;  17  Bradw.  304;  54  111.  332;  79  111.  31 ; 
S3  111-  33 ;  56  111.  304 ;  107  III.  313  ;  9  Bradw.  135. 

(m)  I  Gdm.  185.  See  9  N.  II.  169,  176;  12  Bradw.  255,  299. 

[v)   3  Bla.  Com.  372;  2  Scam.  189;  91  111.  87. 

(w)  3  Scam.  270, 

(x)  3  Scam.  2S7.  See  9  Bradw.  135. 

{y)  40  111.  533. 


BILLS  OF  EXCEPTIONS.  S33 

What;  '.he  bill  should  contain — When  necessary,  etc. 

When  a  bill  of  exceptions  is  signed  and  sealed  by  the 
judge,  both  parties  are  concluded  by  it.  (z) 

What  ike  hill  should  contain^  and  -when  necessary ^  etc. — 
A  party  excepting  should  show  by  his  bill  all  those  mat- 
ters of  which  he  intends  to  avail  himself  in  the  appellate 
court,  and  which  would  not  otherwise  appear  in  the  record 
of  the  cause ;  the  office  of  a  bill  of  exceptions  being  to  in- 
corporate into  the  record  matters  which  otherwise  would  be 
no  part  of  it,  and  therefore  couldnot.be  considered  on  writ 
of  error  or  appeal.  (^) 

Where  an  exception  is  taken  to  permitting  a  question 
to  be  asked,  and  the  witness  to  answer  it,  the  answer  as 
well  as  the  question  should  be  given  in  the  bill  of  excep- 
tions ;  {U)  and  a  part}^  complaining  of  the  refusal  to  admit 
evidence,  should  show  by  his  bill  of  exceptions  what  the 
evidence  was  which  was  offered  and  refused,  (c) 

An  affidavit  in  support  of  a  petition  for  a  change  of 
venue,  {d)  or  of  a  motion  of  any  kind  ;  {e)  or  the  reasons  in 
writing  filed  on  moving  for  a  new  trial ;  {/)  or  a  sworn 
answer  of  parties  to  an  attachment  for  a  contempt;  (^>-)  or 
a  copy  of  an  instrument  indorsed  on  a  declaration  ;  iJi)  or  a 
bill  of  particulars;  (/)  can  only  be  made  a  part  of  the 
record  by  a  bill  of  exceptions,  and  unless  so  presented  will 

(^)  3DaU.  38;  BuIlN.  P.  316. 

(a)  See  i  Scam.  233,  501 ;  3  Scam.  1S5,  289;  4  Scam. 30,  58,  4^9*.  2  Gilm. 
725;  3  Gilm.  366;  5  Gilm.  209,  47S;  11  111.  .sS6;  12  111.  143;  13  111.  76,  344, 
570,633;  16  111.  13S;  19  III.  393;  20  111.  221;  28  III.  68;  37^11-43;  4°  111-395; 
43  111.  146;  49  111.  4S9. 

(*)  I  Scam.  501 ;  2  Scam.  495;  3  Scam.  427.     See  17  111  234. 

(c)  19  111.  393. 

{d)  28  111.  68;  77  111.  493;  73  111.  320,  366;  66  111.  329. 

{e)  See  21  111.  31;  51  111.  85 ;  53  111.  252,366;  77  111.  151 ;  64  111.  314;  59 
111.  182;  90  111.  415. 

(/)  See  28  111.  314;  89  111.  156;  84  111.  49. 

(^)3i  111.97. 

(//)  26  111.  184.     See  24  111.  1S7. 

(O24III.  262;3illl.  515- 


834  BILLS  OF  EXCEPTIONS. 

What  the  bill  should  contain — When  necessary,  eic. 

not  be  considered  by  the  appellate  court,  A  party  can  not 
question,  on  error,  a  ruling  of  the  court  below  in  refusing 
to  require  the  plaintiff  to  file  a  more  definite  bill  of  particu- 
lars, unless  that  already  filed  is  prescrx  ed  in  the  record  by 
a  bill  of  exceptions.  (/)  And  when  a  party  excepts  to  the 
denying  of  a  motion,  (on  which  counter  testimony  may  be 
heard,)  and  shows  in  his  bill  of  exceptions  an  affidavit  in 
support  of  the  motion,  he  should  also  show  that  such  affi- 
davit was  the  onl}'  evidence  heard  on  the  question.  {J) 
And  it  is  said  that  "  the  mere  entry  of  a  motion  does  not 
make  the  motion  or  reasons  therefor  a  part  of  the  record, 
but  that  must  be  done  by  bill  of  exceptions."  [k) 

The  proper  practice,  where  a  party  objects  to  an  order 
upon  a  petition  for  the  removal  of  a  cause  from  a  state  to  a 
federal  court,  is  to  preserve  in  a  bill  of  exceptions  the  evi- 
dence upon  which  the  order  was  made  ;  and  the  record  will 
then  show  whether  or  not  such  order  was  erroneous.  (/) 

To  enable  the  appellate  court  to  pass  upon  the  propriety 
of  modified  instructions,  the  instructions  as  asked  should  be 
before  that  court,  and  also  the  modifications  as  made  by  the 
court  below,  {m)  Errors  assigned  on  the  refusal  of  in- 
structions will  not  be  considered,  unless  those  instructions 
which  were  given  are  preserved  in  the  record,  {n) 

In  the  case  of  an  exception  to  the  admissibility  of  testi- 
mony, the  particular  testimony  objected  to,  and,  it  seems, 
the  ground  of  the  objection,  should  appear  by  the  bill  of 
exceptions,  {o)  And  where  the  bill  of  exceptions  does  not 
purport  to  contain  all  the  evidence,  the  presumption  is  in 
favor  of  the  verdict.  (/) 


(;')  31  /il.  515.     See  72  111.  292. 

(/)  16111.390. 

(yJ)3SIll.  .97;  42111.321. 

(/)  106  111.  652;  49  111.  4^9;  89  111.  152;  56  111.  353  ;  6s  111.   III. 

{m)  32  111.  130;  37  111.  43;  38  111.  503;  42  111.  17;  54  111.  158;  77  III.   603. 

(n)  54  III.  158;  109111.  457. 

{0)  26  111.  173;  III  111.  420. 

(/)  23  111.  90;  36  111.  206;  37  111.  43;  39  I'l.  295.  370;  42  111.  123;  44  III. 

124;  52  111.  80;  55  111.  341;  89  111.  151;  85  111. '38;  76  111.  ,-,^5;  72  111.  456; 

78  111.  356;  Ii8  111.  304;    19  Bradw.  585. 


BILLS  OF  EXCEPTIONS.  835 

What  the  bill  should  contain — When  necessary,  etc. 

If  documents  introduced  are  lengthy,  and  relate  partly 
to  other  matters,  it  seems  the  material  parts  only  need  be 
preserved  in  the  record,  {q) 

A  bill  of  exceptions  is  not  necessary  in  any  case  where 
the  error  is  intrinsic,  appearing  on  the  face  of  the  rec- 
ord, (r)  An  exception  to  the  overruling  of  a  demurrer,  (5) 
or  a  motion  in  arrest  of  judgment,  {t)  is  improper,  as  these 
matters  are  part  of  the  record,  and  need  no  bill  of  excep- 
tions to  make  them  so.  If  a  bill  of  exceptions  includes  the 
pleadings  in  the  cause,  or  other  unnecessary  matters,  the 
costs  thereby  occasioned  will  be  taxed  against  the  party 
who  caused  their  insertion,  [u) 

Interrogatories  to  and  answers  of  a  garnishee,  (v)  or  a 
submission  and  award  filed  for  the  purpose  of  obtaining 
judgment,  (w)  are  part  of  the  record,  and  need  not  be  put 
into  a  bill  of  exceptions. 

Where  a  judgment  is  confessed  in  term^  on  a  promissory 
note  and  warrant  of  attorney,  these  papers  can  become  part 
of  the  record  only  by  being  preserved  in  a  bill  of  excep- 
tions ;  (x)  but  it  is  otherwise  in  the  case  of  a  judgment  con- 
fessed in  vacation,  (^y) 

Original  papers,  even  by  consent,  can  not  be  presented 
in  the  appellate  court  as  part  of  a  bill  of  exceptions,  unless 
something  is  to  be  determined  by  an  inspection  of  them,  or 
they  can  not  be  exhibited  by  copy  so  as  to  present  the  point 
of  law  intended  to  be  raised — and  then  they  should  be 
clearh^  identified  by  the  bill  of  exceptions,  {z) 

A  bill  of  exceptions  presenting  a  mere  abstract  proposi- 


(jf)  19  111.  64. 

(/-)  21  111.  40;  23  III.  209;  10  Bradw.  564. 

(j)  21  III.  220;  22  111.  207;  29  111.  245;  69  III.  47;  15  Bradw.  308. 

(/)  29  111.  245;  40  111.  395. 

(«)  20  111.  221;  24  III.  289. 

{v)   27  111.  352. 

(w)  27  111.  374. 

(^)  55  111.  94. 

0')  24  111.  94;  55  111.  94. 

(=)  19  111.  64. 


836  BILLS  OF  EXCEPTIONS. 

Forms  of  bills, 

don,  as  applicable  to  one  case  as  to  another,  can  not  be 
made  the  foundation  of  a  writ  of  error.  The  party  except- 
ing must  distinctly  point  out  wherein  he  supposes  himself 
to  be  aggrieved,  (a) 

Although  a  bill  of  exceptions  may  show  that  testimony 
was  improperly  admitted  or  excluded,  or  instructions  were 
improperly  given  or  refused,  or  other  error  was  committed 
by  the  court,  3'et  unless  it  also  appears  from  the  bill  that 
the  proper  objections  were  made  and  exceptions  taken, 
such  matters  can  not  be  assigned  for  error,  (b) 

The  counsel  for  the  party  excepting  prepares  the  bill  of 
exceptions,  and  submits  it  to  the  judge,  who  examines  it, 
and,  if  correct,  signs  and  seals  it ;  and  it  is  then  filed,  and 
becomes  a  part  of  the  record. 

It  is  impossible  to  give  forms  of  bills  of  exceptions  appli- 
cable to  all  cases.  The  following  may  be  used,  varying 
them  to  suit  the  circumstances. 

JVo.  347-     ^///  of  excefti^ns  to  evidence^  instructions y  and 
denying  of  motion  for  ne7v  trial. 

In  the  — Court. 

Term,  18—. 

C.  D.  ^ 

ats.     >  Assuiu'psit. 

A.  B.  3  Be  it  remembered,  that  on  the  trial  of  this 
cause,  in  this  term,  the  plaintiff  gave  in  evidence  on  his 
behalf  as  follows,  that  is  to  say  : 

J.  K.,  being  duly  sworn,  testified  :  My  name  is  J.  K.  ;  I 
am  acquainted  with,  etc.  {^Objections  made  and.  exceptions 
taken  in  the  course  of  the  examination  may  be  set  forth  in 
this  manner  :  Thereupon  the  counsel  for  the  plaintiff  asked 
the  witness  this  question  :  What,  etc.  To  which  question 
the  defendant,  bv  his  counsel,  tlien  and  there  objected,  lor 
the  reason,  etc.  ;  but  the  court  overruled  the  objection,  and 

(a)  /^  Ohio,  79,  3SS;  7  Ohio,  212;   12  Ohio,  132.     See  26111.  173. 

{l>)  See  Breese,  343;  i  Scam.  2S1 ;  3  Scam.  483;  i  Gilm.  572;  4  Gilm. 
319;  12  111.  74,  87;  13  111.  341,  454;  17  111.  67;  22  111.  1S3.;  23  111.  470;  28 
111.  314;  39  111.  370;  40  111.  220;  42  111.  283,  291,  321 ;  44  III.  264;  46  111.  280, 
347;  52  111.  358;  54  111.  274,  280;  55  111.  448,  528. 


BILLS  OF  EXCEPTIONS.  837 

Forms  of  bills. 

permitted  the  witness  to  answer  the  question,  whicii  he 
thereupon  did  as  follows  :  I  heard,  etc.  To  which  ruling 
and  decision  of  the  court,  in  permitting  this  question  to  be 
so  asked  and  answered,  the  defendant,  by  his  counsel,  then 
and  there  excepted.  Proceed  ivith  the  testimony  thus: 
And  thereupon  the  witness  further  testified  :  I  acted  for  the 
plaintiff,  etc.) 

On  cross-examination  by  the  counsel  for  the  defendant, 
this  witness  testified  :  I  was  not  present,  etc. 

{Proceed  .ill  like  manner  with  the  testimony  of  any  other 
zvitnesses  for  the  -plaintiff i) 

And  thereupon  the  defendant  gave  in  evidence  on  his 
behalf  as  follows,  that  is  to  say  : 

{Here  insert  the  testimony  for  the  defendant^  zvith  any 
objections  made  and  exceptions  taken  by  him.) 

The  foregoing  was  all  the  evidence  introduced  on  the 
trial  of  this  cause. 

And  thereupon  the  court  gave  to  the  jury,  on  behalf  of 
the  plaintiff,  the  following  instructions,  to  wit : 

{Here  insert  the  instructions  for  the  plaintiff i) 

To  the  giving  of  each  and  all  of  which  instructions  the 
defendant,  by  his  counsel,  then  and  there  excepted. 

And  thereupon  the  court  gave  to  the  jury,  on  behalf  of 
the  defendant,  the  following  instructions,  to  wit : 

{Here  insert  the  instructions  given  for  the  defendanti) 

And  the  defendant,  by  his  counsel,  then  and  there  asked 
the  court  to  also  give  to  the  jury  the  following  instructions, 
to  wit : 

{Here  insert  the  refused  instructions.) 

But  the  court  refused  to  give  these  instructions  to  the 
jury  ;  to  which  decision  of  the  court,  in  refusing  to  give  the 
same,  and  each  of  them,  to  the  jury,  the  defendant,  by  his 
counsel,  then  and  the^e  excepted. 

And  thereupon  the  jury  rendered  a  verdict  against  the 
defendant;  whereupon  the  defendant,  by  his  counsel,  then 
and  there  moved  the  court  to  set  aside  the  verdict  so  ren- 
dered, and  grant  a  new  trial  of  this  cause,  and  filed  the 
foUowinrj  reasons  in  writing:  lor  his  motion,  to  wit : 

{Here  insert  the  reasons  filed.) 

But  the  court  denied  the  motion,  and  gave  judgment  on 
the  verdict  against  the  defendant ;  to  which  decision  of  the 
court,  in  denying  such  motion,  the  defendant,  by  his  coun- 
sel, then  and  there  excepted. 


838  BILLS  OF  EXCEPTIONS. 

Reference. 

And  forasmuch  as  the  matters  above  set  forth  do  not  fully 
appear  of  record,  the  defendant  tenders  this  his  bill  of  excep- 
tions, and  pra3's  that  the  same  may  be  signed  and  sealed  by 
the  judge  of  this  court,  pursuant  to  the  statute  in  such  case 

made  ;  which  is  done  accordingly,  this day  of,  etc. 

'L.  M.,  Judge,   [l.  s.] 

No.  348.     Bill  of  exception  on  the  refusal  of  a  coniintir- 

ance. 

( Title  of  coti7't^  etc.)    Be  it  remembered,  that  on  this 


day  of,  etc.,  in  this  term,  the  defendant  moved  the  court  to 
continue  this  cause,  on  account  of,  etc.,  and  read  and  filed 
in  support  of  his  said  motion  the  following  affidavit,  to  wit : 

{Here  insert  the  affidavit.^ 

But  the  court,  having  heard  the  said  affidavit,  (*)  denied 
the  said  motion,  and  refused  to  continue  this  cause  ;  to  which 
ruling  and  decision  of  the  court  the  defendant,  by  his  coun- 
sel, then  and  there  excepted.  And  because  the  matters 
aforesaid  do  not  fully  appear  of  record,  the  defendant  pre- 
sents this  his  bill  of  exception,  and  prays  that  the  same  may 
be  signed  and  sealed  by  the  judge  of  this  court,  pursuant 
to  the  statute,  etc.  ;  which  is  accordingly  done. 

L.   M.,  Judge,    [l.  s.j 

In  the  case  of  a  motion  on  which  counter  affidavits  or 
testimon}^  may  be  heard,  insert  (at  the  asterisk  in  the  above 
form)  the  words,  "which  was  all  the  evidence  heard  in  that 
behalf" — first  setting  forth  all  the  affidavits  or  testimony 
introduced,  (c) 

Bills  of  exception  may  be  amended  upon  application  and 
notice  to  the  adverse  party;  but  it  must  be  made  in  term 
time,   {d^ 

See  several  bills  of  exceptions  to  instructions  of  the  court, 
in  I  Scam.  R.  47,  107,  181,  187;  a  bill  of  exceptions  to 
evidence  and  the  denial  of  a  motion  for  a  new  trial,  in  18 
111.  R.  392  ;  and  a  bill  of  exception  on  the  denial  of  a  mo- 
tion to  set  aside  a  judgment  by  confession,  in  i  Scam.  R. 
428. 

(c)  16  III.  390. 

{d)  62  111.  121;  68  111.  269;  40  111.  102. 


REFEREES.  839 


Referring  causes  b.y  agreement. 


CHAPTER  XXXII. 


REFEREES. 


Referring  caiises  by  agreement. — Section  i  of  the  act  of 
1872,  entitled  "An  Act  to  provide  for  referees  in  common 
law  cases,"  [a)  declares, 

"That  in  all  common  law  causes  in  courts  of  record,  after 
issue  joined  or  default  entered,  it  shall  be  competent  for  the 
court,  upon  agreement  of  the  parties  or  their  counsel,  to 
appoint  one  or  more  referees,  not  exceeding  three,  who  shall 
have  authority  to  take  testimony  in  such  cause,  and  report 
the  same  in  writing,  together  with  their  conclusions  of  law 
and  fact,  to  the  court,  and  the  court  shall  have  power  to 
render  judgment  upon  the  filing  of  such  report:  Provided, 
jither  party  may  except  to  such  report,  and  have  his  excep- 
tions heard  and  determined  by  the  court;  and  the  court  may, 
if  necessary  to  take  further  evidence,  refer  the  cause  back  to 
the  referees,  with  instructions.  Notice  of  the  time  of  hearing 
such  exceptions  and  taking  of  such  further  evidence,  shall  be 
given,  under  such  rules  as  the  court  may  prescribe." 

The  power  given  to  the  court  by  the  above  section  is  a 
discretionary  power,  with  the  exercise  of  which  the  Appellate 
Court  will  not  interfere  unless  it  is  clearly  shown  that  it  has 
been  abused.  {B) 

The  proceeding  before  a  referee,  being  statutory,  must  in 
all  substantial  respects,  pursue  the  statute,  or  it  can  not  be 
sustained.  The  statute  quoted  provides  for  the  selection  or 
appointment  of  no  referee  except  by  order  of  court.     It  au- 

{a)   2  Starr  &  Curtis'  An.  Stat.  2CO3 ;   Rev.   Stat.  (1877)  S05. 
(b)  19  Bradw.  24. 


840 


REFEREES. 


I 


Exceptions  to  report. 


thorizes  no  report  by  a  referee  except  one  containing  the  evi- 
dence heard  and  giving  the  referee's  conclusions  thereon,  to 
which  the  parties  are  entitled  to  be  heard  on  exceptions.  If 
the  report  fails  to  give  the  evidence,  no  judgment  can  be 
entered  on  it.   (c) 

Where  the  parties  to  a  suit  at  law  make  an  agreement  out 
of  court  to  submit  the  cause  to  a  third  person,  and  that  the 
court  shall  enter  judgment  on  the  finding  of  such  third  per- 
son, though  not  in  compliance  with  the  statute  in  reference 
to  arbitration,  or  that  concerning  the  appointment  of  a  ref- 
eree, the  court  may,  by  mutual  consent,  enter  judgment  upon 
the  finding,  but  if  it  is  objected  to,  the  trial  must  proceed  as 
at  common  law. 

This  is  well  illustrated  by  reference  to  kindred  cases  where 
causes  pending  are  submitted  to  arbitration  with  an  agree- 
ment that  judgment  may  be  rendered  thereon,  under  the  stat- 
ute. In  such  cases  it  is  held  that  nothing  but  a  strict  sub- 
stantial compliance  with  the  statute  will  authorize  the  court 
to  enter  a  judgment  upon  the  award,  (d)  The  referee  is  an* 
officer  of  the  court,  and  can  only  be  appointed  by  an  order  of 
the  court,  {e) 

Exceptions  to  report —  When  to  be  inade. — Exceptions  to  the 
report  of  the  referee  must  be  made  in  the  court  from  which 
the  reference  is  taken.  Where  no  objections  are  taken  in 
the  court  below,  they  will  not  be  considered  in  the  Appellate 
or  Supreme  Court  upon  appeal  or  writ  of  error.  (/) 

The  report  and  findings  of  a  referee  under  the  statute  in 
reference  to  the  facts,  is  regarded  in  the  same  light  as  the 
verdict  of  a  jury,  and  should  not  be  set  aside  or  disturbed, 
except  upon  such  grounds  as  would  justify  the  setting  aside 
of  a  verdict  and  granting  a  new  trial,  i^g) 


{c)  90  111.  307. 

(</)   15  111.  36S;  17  111.  Ill;  90  111.  307. 

(e)  Ilofi'inan  on  Referee??,  p.  2,  Sec.  3;  90  111.  310. 

(/)  88  111.  410;  19  Bradw.  24. 

(n)   18  Bradw.  72;  22  Cal.  471;  i  Cal.  32,  45;  Edwards  on  References,  131. 


REFEREES.  841 

Attendance  of  witnesses,  etc. — Agreement  to  refer  cause  to  referees. 

Attendance  of  witnesses — Oaths. — Section  2  of  the  same  act 
provides,  that 

"  Witnesses  may  be  required  to  attend  and  testify  before 
such  referees  in  the  same  manner  as  is  or  may  be  provided 
by  law  in  cases  before  masters  in  chancery;  and  such  referees 
shall  have  power  to  administer  oaths  to  witnesses." 

yiidgment — Referee's  fees — Costs. — By  section  3,  it  is  pro- 
vided, that 

"Upon  final  hearing  of  the  cause  the  court  shall  render 
judgment,  and  shall  tax  as  costs  against  the  unsuccessful 
party  such  fees,  for  the  services  of  the  referees,  as  shall,  in 
the  judgment  of  the  court,  be  reasonable  and  proper,  not  to 
exceed  ;$5  per  day  ;  Provided,  that  whenever  the  parties  to 
any  such  suit,  or  their  counsel,  shall,  in  writing,  to  be  filed 
in  court,  agree  upon  a  larger  or  less  sum  per  day,  then  the 
court  shall  be  authorized  to  tax  as  part  of  the  costs  in  such 
case  the  per  diem  so  agreed  upon." 

Testimony — Record. — It  is  provided  in  section  4,  that 
"All  testimony  taken  before  referees  shall  be  subscribed  by 
the  witnesses,  and  the  same,  together  with  all  exhibits  and 
papers  introduced  in  evidence,  and  the  report  of  the  referees, 
shall  be  included  in  and  form  a  part  of  the  record  of  the 
cause." 

No.  349.     Agreement  to  refer  cause  to  referees. 

In  the Circuit  Court. 

Term,  A.  D.  iS— . 

A.  B.^ 

z'.-?.  \  In  Assumpsit. 
C.  D.  j  The  above  named  plaintiff  and  defendant  hereby 
mutually  agree,  that  the  court  may  appoint  one  or  more 
referees,  not  exceeding  three,  to  be  authorized  to  take  the 
testimony  in  such  cause,  and  report  the  same  in  writing, 
together  with  their  conclusions  of  law  and  facts,  to  the  court, 
in  pursuance  of  the  statute  in  such  case  made  and  provided. 
Dated,  etc.  A.  B. 

C.  D. 


842  REFEREES. 


Order  appointing  referee — Report  of,  etc. 


No.  350.      Order  appointing  referee. 

{Title  of  cause.) 

Upon  the  agreement  of  the  parties  hereto,  it  is  ordered  that 
E.  F.  be,  and  he  is  hereby  appointed  referee,  with  authority  to 
take  testimony  in  this  cause,  and  report  the  same  in  writincj, 
together  with  his  conclusions  of  the  law  and  facts  in  this 
cause,  to  the  court;  pursuant  to  the  statute  in  such  case  made 
and  provided. 

No.  351.     Report  of  referee  in  favor  of  the  plaintiff. 

(  Venue  and  title  of  cause.) 

To  the  honorable  Judge  of  said  court : 

In  pursuance  of  an  order  of  this  court  made  in  the  above 
entitled  cause,  on,  etc.,  appointing  the  undersigned  referee, 
with  authority  to  take  testimony  in  this  cause,  and  report  the 
same  in  writing,  together  with  his  conclusions  of  the  law  and 
facts  in  said  cause,  to  the  court,  the  undersigned,  referee, 
respectfully  reports,  that  having  first  given  a  written  notice  to 
the  said  parties,  respectively,  of  the  time  and  place,  when  and 
where  the  said  testimony  would  be  taken,  and  caused  to  come 
before  him,  as  such  referee,  all  such  witnesses  as  the  respect- 
ive parties  desired  or  made  known  to  him,  and  having  been 
attended  by  the  attorneys  of  the  respective  parties,  the  under- 
signed, as  such  referee,  did,  on,  etc.,  at,  etc.,  proceed  to  take  the 
testimony  of  the  respective  parties;  and  the  several  witnesses 
attending,  having  been  severally  sworn,  and  examined,  he, as 
such  referee,  reduced  their  testimony  to  writing,  and  herewith 
reports  the  same,  to  be  filed  in  said  cause. 

The  undersigned  would  further  report,  that,  having  exam- 
ined the  law  and  facts  in  said  cause,  he  reports  his  conclu- 
sions thereon  as  follows,  that  is  to  say  : 

Upon  the  facts  in  the  case  lie  concludes  and  finds: 

First.     That,  etc.     {Here  insert  the  facts  as  fonnd^ 

Second.     That,  etc.     {And  so  on.) 

And  upon  tl!e  law  of  the  case  his  conclusions  are  : 

First.     That,  etc. 

Second.  That,  etc.  {And  so  on^  inserting  the  conclusions  of 
the  referee  upon  each  legal  point.) 

The  undersigned,  as  such  referee,  finds  (*)  that  there  is  due 
to  the  plaintiff  A.  B.,  from  the  defendant  C  D.,  the  sum  of 
dollars,  besides  the  costs  of  suit. 

All  of  which  he,  as  such  referee,  respectfully  reports  to  the 
court. 

Dated,  etc.  E.  F.,  Referee. 


REFEREES.  843 

Forms  of  repons. 

No.  352.     Report  of  referee  in  favor  of  the  defendant. 

(A.'!  in  the  last  form  to  the  (*),  andtlien  as  follotvs:)  that  tliere 
is  nothing  due  from  the  defendant  C.  D.  to  the  plaintilT  A.  B. 
All  of  which,  etc.     {As  in  the  last  form.) 

No.  353.     Exceptions  to  report  of  referee. 

(  Venue  and  title  of  cause?) 

Exceptions  of  the  defendant  {or plaintiff )  to  the  report  of 
the  referee,  filed  in  said  cause,  on,  etc. 

First  For  that  the  said  referee  in  his  first  findings  of  facts 
has  erroneously  found,  etc.  {Here  insert  tJie  ground  of  excep- 
tion.) 

Seco7id.  For  that  the  said  referee  in  his  second  findings  of 
fact  has  erroneously  found,  etc. 

Third.     For  that,  etc.,  {and  so  on.) 

Fourth.  For  that  the  following  facts  are  not  stated  in  the 
findings  of  fact  in  the  said  report,  viz. :  That,  etc.   {Here  insert.) 

Fifth.  For  that  the  first  of  the  conclusions  of  law  contained 
in  the  said  report  is  erroneous. 

Sixth.  For  that  the  second  of  the  conclusions  of  law  con- 
tained in  the  said  report  is  erroneous. 

Seventh.  For  that  the  said  report  is  in  favor  of  the  plaintiff 
{or  defendant),  whQVGdiS  \t  should  have  been  in  favor  of  the 
defendant  {or  plaintiff).- 

Eighth.  For  that  the  following  conclusions  of  law  upon 
the  facts  in  the  case,  are  not  contained  in  the  said  report,  viz.  : 
That,  etc.    {He^-e  insei't.) 

Wherefore  the  defendant  {or  plaintiff)  excepts  to  the  said 
report,  and  appeals  therefrom  to  the   judgment  of  this  court. 

Attorney  for 


844  SUBMISSION  TO  JUDGE. 

Agr;  ement  to  suimiit  controversies  to  ji'djje. 


CHAPTER  XXXIII. 

SUBMISSION  TO  JUDGE. 

The  act  of  1887,  entitled  "  An  Act  to  enable  parties  to 
avoid  delay  in  the  administration  of  justice,"  provides, 

"  That  any  two  or  more  persons  or  corporations  may  ap- 
pear in  person  or  by  attorney  in  any  Circuit  Court  (or  iii  the 
Superior  Court  of  Cook  county),  and  submit  to  any  judge  there- 
of, orally,  and  without  formal  pleadings,  any  matter  in  con- 
troversy, having  first  entered  into  a  written  agreement  [to  be 
entered  of  record),  and  substantially  in  the  following  form,  to- 
wit:  [a] 

No.  354.     Agreement  to  submit  controversies  to  a  judge. 

"  In  the court  of county. 

First.  We  [Jicre  insert  names)  do  hereby  mutually  agree 
to  submit  to  Judge  {Jiere  insert  imme),  of  said  court,  certain 
matters  in  controversy  between  us  for  his  determination,  with- 
out a  jury,  he  to  hear  the  same  forthwith  and  to  enter  the 
judgment  or  decree  of  the  court  therein  within  (Jiere  insert 
number  of  days  or  ''  forthzvith  ")  days  after  such  hearing  is 
concluded. 

Second.  That  said  judgment  or  decree  shall  contain  a 
statement  as  to  what  matters  in  controversy  were  so  submit- 
ted, and  such  statement  thereof  shall  be  conclusive. 

Third.  That  no  record,  except  of  this  agreement  and  of 
such  judgment  or  decree,  shall  be  made  as  to  the  matters  in 
controversy  so  submitted,  or  as  to  the  proceedings  had  on 
the  hearing  thereof 

(a)      Starr  &  Curtis'  An.  Suppl.  Stat.  435;  Laws  of  1S87,  p.  15S. 


SUBMISSION  TO  JUDGE.  845 

Agreement  to  submit  controversies  to  judge. 

Fourth.  That  such  judgrnent  or  decree  may  be  enforced 
in  like  manner  as  olher  judgments  and  decrees  of  such 
court. 

Fifth.  That  we  each  to  the  other  hereby  waive  all  right 
of  appeal  from  such  judgment  or  decree,  and  release  all 
errors  that  may  intervene  in  the  hearing  of  the  matter  so 
submitted,  and  in  the  entering  up  of  the  judgment  or  decree 
therein,  and  agree  that  this  release  of  errors  may  be  pleaded  in 
bar  of  any  writ  of  error  that  may  be  sued  out  as  to  such 
judgment  or  decree. 

Witness   our  hands  and  seals,  this  day  of , 

A.  D.  18—. 

[seal.] 

[seal.]" 

"  Such  agreement  shall  be  signed  by  the  parties  in  person 
or  by  duly  authorized  attorney  in  fact,  and  when  so  executed 
shall  be  of  binding  force  upon  the  parties  thereto  in  all  the 
courts  of  this  state. 

2.  "  It  shall  be  the  duty  of  such  judge  to  proceed  and  in  a 
summary  manner  to  hear  and  determine  the  matters  so  sub- 
mitted, and  he  shall  enter  a  judgment  or  decree  therein,  within 
the  time  fixed  in  said  agreement,  which  said  judgment  or 
decree  shall  be  final  and  conclusive,  and  may  be  enforced  in 
like  manner  as  other  judgments  or  cfecrees  of  such  court,  but 
no  appeal  shall  be  allowed  therefrom." 


846  AGREED  CASES. 


Certified  to  Supreme  or  Appellate  Court. 


CHAPTER  XXXIV. 

AGREED  CASES — QUESTIONS  OF  LAW  CERTIFIED. 

Agreed  cases — Certified  to  Supreme  or  Appellate  Court. — It  is 
provided  by  section  74  of  the  Practice  Act,  that 

"  The  parties  in  any  suit  or  proceeding  at  law  or  in  chan- 
cery, in  any  Circuit  Court  or  the  Superior  Court  of  Cook 
County,  or  in  any  city  court,  may  make  an  agreed  case  con- 
taining the  points  of  law  at  issue  between  them,  and  file  the 
same  in  such  court;  and  the  said  agreed  case,  with  the 
decision  thereon,  may  be  certified  to  the  Appellate  Court  or 
Supreme  Court  by  the  clerk  of  such  court,  without  certifying 
any  fuller  record  in  the  case ;  and  upon  such  agreed  case 
being  so  certified  and  filed  in  the  Appellate  Court  or  Supreme 
Court,  the  appellant  or  plaintiff  in  error  may  assign  errors, 
and  the  case  shall  then  be  proceeded  in  in  the  same  manner 
as  it  might  have  been  had  a  full  record  been  certified  to  said 
Appellate  Court  or  Supreme  Court."   {(i) 

When  a  court  has  reason  to  believe  that  an  agreed  case  is 
not  real,  but  a  fictitious  proceeding,  proof  will  be  required 
that  the  action  is  not  feigned,   {b) 

The  Supreme  or  Appellate  Court  has  no  jurisdiction  to  decide 
an  agreed  case,  without  it  first  having  been  decided  by  a  trial 
court,  and  a  record  is  certified  from  that  court ;  (r)  nor  can 
such  courts  acquire  jurisdiction  by  stipulation  of  the  parties, 
in  the  absence  of  a  judgment.   (^) 

Under  an  agreed  statement  of  facts,  where  the   clerk  certi- 

(a)  2  Starr  &  Curtis'  An.  Stat.  1837;  Rev.  Stat.  (1877)744. 
{b)  40  111.  118;  2  Scam.  211;   I   Scam.  582;   Rule    20    of  Rules    of    vSupreme 
Court ;  93  111.  7;   Puterbaugli's  Ch.  PI.  &  Pr.,  829. 
(c)  4  G-lra.  387.     See  115  111.  466, 
\d)   5  Bradw.  556,  230;    13  ill.  343;   17  111.  246;  86  111.  560. 


AGREED  CASES.  81/ 

Questions  of  law  certified. 


fied  counsel's  certificate  and  "  the  final  decision  of  the  case," 
the  transcript  was  held  fatally  defective  for  omitting  the  cer- 
tificate of  the  decision  of  the  court  on  the  questions  of  law 
stated  in  the  stipulation,  (r) 

Questions  of  lazv  certified — jfiidges  may  ceiiify  questions  of 
lazv  — Section  75  of  the  Practice  Act  provides,  that 

"  Any  judge  of  the  Circuit  Court,  or  the  Superior  Court  of 
Cook  County,  or  of  any  city  court,  may,  if  the  parties  litigant 
assent  thereto,  certify  any  question  or  questions  of  law  arising 
in  any  case  tried  and  finally  determined  before  him  to  the 
Appellate  or  Supreme  Court,  together  with  his  decision  there- 
on ;  or  the  parties  in  the  case  may  agree  as  to  the  questions 
or  points  of  law  arising  in  the  case,  and  the  same  may  be  certi- 
fied by  the  counsel  or  attorneys  of  the  respective  parties,  who 
shall  sign  their  names  thereto;  and  upon  such  certificate  be- 
ing made,  the  same  shall  be  filed  in  the  court  rendering  the 
decision,  and  a  copy  of  such  certificate,  certified  by  the  clerk 
of  said  court,  with  the  decision  thereon  and  final  decision  in 
the  case,  to  Appellate  Court  or  Supreme  Court,  and  filed 
therein  ;  and  upon  filing  the  same,  the  like  proceedings  may 
be  had  in  the  Appellate  Court  or  Supreme  Court,  as  if  a  full 
and  complete  record  had  been  transcribed  and  certified  to  said 
court."  (/) 

Exceptions  to  the  tivo  above  sections. — It  is  declared  by  sec- 
tion yd  of  the  Practice  Act,  that 

"  The  two  preceding  sections  shall  not  apply  to  cases  in 
which  the  title  to  real  estate  is  in  question,  nor  to  cases  where 
any  question  of  fact  appertaining  to  the  constitutional  enact- 
ments of  a  law  of  this  State  is  involved."  (^) 

In  plain  terms,  the  section  75  of  the  statute  prescribes,  i, 
a  certificate  by  the  counsel  or  attorneys  of  the  "questions  or 
points  of  law  arising,"  a  copy  of  which  must  be  certified  by 

(e)  18  Brachv.  65.     See  17  Bradw.  38. 

(/)  2  Starr  &  Curtis'  An.  Stat.  1837;  Rev.  Stat.  (1877)  744.  .See  115  111.  4C6. 
Q-)  2  Starr  &  Curtis'  An,  Stat.  1S37;    Rev.  Stat.  (1877)  744. 
54 


848  AGREED  CASES. 


Between  parties  in  suit  pending. 


the  clerk  ;  who  must  also  certify,  2,  the  decision  thereon  ; 
and  3,  the  final  decision.  The  court  is  not,  under  this  sec- 
tion, authorized  to  accept  the  agreement  or  certificate  of 
counsel  as  to  the  facts,  and  without  them,  the  court  cannot 
know  what  the  decision  was, upon  the  points  of  law  stated.  (//) 

No.  355.     Agreed  case  bctxveen  parties  in  S7iit  pending. 
(Under  Sec.  74,  Practice  Act.)  (/) 

In  the Circuit  Court. 

Term,  A.  D.  18 — . 

A.  B.  ^ 

„,            '^  -^   -1        1  >  Trespass  on  the  case. 
Ihe Railroad  ^ 

Company.  J       We,  A.  B.,  plaintiff,  and  the  defendant, 

Railroad  Company,  in    the    above  entitled   cause,    now 

pending  and  undetermined  in  said  court,  in  pursuance  of  the 

statute  in  such  case  provided,  do  hereby  mutually  make  this 

an  agt"eed  case  and  hereby  stipulate  as  follows,  that  is  to  say  : 

That  on,  etc.,  the  plaintiff  filed  his  declaration  in  due  form, 
counting  upon  a  failure  of  the  defendant  to  fence  its  road,  as 
required  by  the  statute  in  such  case  made  and  provided,  that 
is  to  say  {Jiere  set  forth  the  substance  of  the  allegations  of  each 
count);  and  that  on,  etc.^  the  defendant  filed  its  pica  of  llic 
general  issue  thereto,  to  which  the  plaintifi' added  a  similiter. 

That  the  facts  of  the  matter  in  controversy  are  as  follows  : 
{Here  set  forth  the  facts  in  the  case  as  agreed  7ipon.) 

It  is  further  stipulated  and  mutually  agreed  by  and  between 
the  said  parties,  that  the  points  of  law  at  issue  between  them, 
are  as  follows,  viz.: 

I.  Is  the  plaintiff  entitled  to  recover,  he  having  built  the 
fence  off  the  line  between  him  and  the  defendant's  right  of 
way,  as  above  set  forth  ? 

II.  Is  it  lawful  to  award  as  damages  a  sum  in  double  the 
amount  of  the  cost  of  the  fence  mentioned.? 

III.  Under  the  foregoing  stipulation  and  agreement,  is  the 
plaintiff  entitled  to  recover  against  the  defendant? 

And  it  is  further  stipulated  and  agreed  by  and  between  the 
parties,  that  upon  the  foregoing  agreed  case,  containing  the 
points  of  law  at  issue  between  them,  and   filed   in  said  cause. 


[h)   18  Bradw.  65. 
{i)  See  18  Bradw.  65. 


AGREED  CASES.  849 

Decision  of  court  upon,  between  parties  in  suit  pending, 

that  the  court  shall  decide  thereon,  and  shall  render  judg- 
ment therein,  according  as  the  rights  of  the  said  parties,  in 
law  may  appear,  in  the  same  m.anner  as  if  the  facts  aforesaid 
were  proved  upon  the  trial  of  said  issue,  in  pursuance  to  the 
statute  in  such  case  provided. 

Dated,  this day  of A.  D.  18—. 

A.  B.  by ,  his  attorney. 

The Railroad  Co.  by ,  its  attorney. 

N^o.  356.     Decision  of  the  co7irt  upon  agreed  case  bctivcen  par- 
ties in  suit  pending. 

(Under  section  74,  Practice  Act.)  (/) 

(  Veuiie^  and  title  of  cause  as  in  No.  3S4--) 

And  now  come  the  plaintiff  and  defendant,  by  their  re- 
spective attorneys,  and  this  cause  coming  on  to  be  heard 
before  the  undersigned,  judge  of  said  court,  upon  the  agreed 
case  between  said  parties,  and  the  points  of  law  at  issue  be- 
tween them  ;  and  the  same  having  been  argued  by  the  attor- 
neys for  the  parties  respectively ;  and  the  court  being  fully 
advised  in  the  premises,  doth  decide  and  hold, 

I.  That  the  plaintiff  is  entitled  to  recover,  he  having  built 
the  fence  off  the  line  between  him  and  the  defendant's  right 
of  way  as  in  said  agreement  mentioned. 

II.  That  it  is  lawful  to  award  as  damages,  a  sum  in  double 
the  amiount  of  the  cost  of  the  fence  mentioned. 

III.  That  under  the  stipulation  and  agreement  by  and 
between  the  parties,  and  upon  the  said  agreed  f 'cts  and  the 
law  of  the  case,  as  filed  in  said  cause,  the  plaintiff  is  entitled 
to  recover  against  the  defendant. 

IV.  Therefore  the  court  doth  decide  and  hold,  that  the 
plaintiff  is  entitled  to  recover  of  and  from  the  defendant  the 

sum  of dollars,  with   costs   of  suit  to  be   taxed   by  the 

clerk,  and  directs  that  judgment  be  entered  accordingly,  in 
pursuance  of  the  statute  in  such  case  made  and  provided. 

Dated  this day  of ,  A.  D.  18 — . 

Judge. 

Upon  the  decision  of  the  court,  thus  made,  a  judgment 
should  be  entered,  whereupon  the  said  agreed  case,  with  the 
decision  thereon,  and  the  judgment  rendered,  may  be  certi- 
fied to  the  Appellate  Court   or   the   Supreme    Court,   by   the 

(/)  See  18  Bradw.  65. 


♦  i*i 


S50 


AGREED  CASES. 


Agreement   that   judge  may  certify  questions  of  law, 

clerk   of  such   court,   without  certifying  any  fuller  record  in 
the  case,  {/c) 

No.  357.     Agreement  that  judge  may  certify  questions  of  laiv. 
(Under  Sec.  75,  Practice  Act.) 

{Vcnne,  and  title  of  cause  as  in  No.  jj/,  ante.) 

We,  A.  B.  plaintiff,  and  C.  D.,  defendant,  in  the  above  en- 
titled cause,  tried,  and  finally  determined  in  said  court,  do 
hereby  consent  and  agree  that  the  judge  of  said  court  may 
certify  any  question  or  questions  of  law  arising  in  this  cause 
to  the  Appellate  {or  Supreme)  Court,  together  with  his  decis- 
ion thereon,  in  pursuance  of  the  statute  in  such  case  pro- 
vided ;  and  that  upon  such  certificate  being  made,  the  same 
shall  be  filed  in  said  court,  and  that  a  copy  of  such  certificate, 
certified  by  the  clerk  of  said  court,  with  the  decision  thereon, 
and  the  final  decision  in  the  cause,  to  the  Appellate  Court  {or 
Supreme  Court),  and  filed  therein ;  and  upon  filing  the  same, 
the  like  proceedings  maybe  had  in  the  Appellate  {or  Supreme) 
Court,  as  if  a  full  and  complete  record  had  been  transcribed 
and  certified  to  said  court. 

Dated  this day  of ,  A.  D.  18 — . 

*  A.  B.,  Plaintiff. 
C.  D.,  Defendant. 

No.  358,     Agreement  of  parties  as  to  questions  of  law  arising 

in  the  case. 
(Under  Sec.  75,  Practice  Act  ) 

(Venue,  and  title  of  cause  as  in  No.  jj*^,  ante.) 

We,  A.  B.,  plaintiff,  and  C.  D.,  defendant,  in  the  above 
entitled  cause,  tried  and  finally  determined  in  said  court,  do 
hereby,  in  pursuance  of  the  statute  in  such  case  provided, 
consent  and  agree,  as  to  the  questions  or  points  of  law  aris- 
ing in  the  cause  ;  and  that  the  same  may  be  certified  by 
our  respective  counsel  or  attorneys,  who  shall  sign  their 
names  thereto  ;  and  that  upon  such  certificate  being  made,  the 
same  shall  be  filed  in  said  court;  and  that  a  copy  of  such 
certificate,  certified  by  the  clerk  of  said  court,  with  the  de- 
cision thereon,  and  the  final  decision  in  the  case,  may  be  cer- 
tified to  the  Appellate  Court  {or  Supreme  Court),  and  filed 
therein;   and  that  upon  filing  the  same,  the  like  proceedings 

{k)  See  authorities  already  cited,  anli. 


AGREED  CASES.  851 


Certificate  of  judge  of  questions  of  law,  etc. 


may  be  had  in  the  Appellate  Court  {or  Supreme  Coiirf),  as  if 
a  full  and  complete  record  had  been  transcribed  and  certified 
to  said  court. 
Dated,  etc. 

A.  B.,  Plaintiff. 

C.  D.,  Defendant. 

^^'^-  359-     Certificate  of  judge  of  questions  of  laiv  arising  in  a 

case  determined,  etc. 

(Under  Sec.  75,  Practice  Act.)  (/) 

(  Venue,  and  title  of  cause  as  in  No.  J5/,  ante.) 

The  undersigned,  judge  of  the,  etc.,  hereby  certifies  that  the 
above  entitled  cause  was  based  upon,  and  originated  in  a  dis- 
tress for  rent,  under  section  17  of  chapter  80  of  the  Revised 
Statutes  of  1874,  by  the  plaintiff  filing  with  the  clerk  of  said 
court  a  copy  of  a  distress  warrant,  against  the  defendant,  with 
an  inventory  of  the  property  levied  upon  ;  which  was  a  war- 
rant against  the  goods  of  the  defendant  for  rent  claimed  by 
the  plaintiff  to  be  due  and  in  arrear  to  him  as  the  landlord  of 
the  defendant. 

A  summons  was  issued,  as  provided  in  section  18  of  that  act, 
which  was  duly  served  on  the  defendant,  who  appeared  and 
pleaded  "  no  rent  in  arrear." 

After  this  plea  was  interposed,  the  plaintiff,  by  leave  of 
court,  filed  the  common  counts  in  assumpsit,  as  an  amendment 
to  the  distress  warrant,  and  to  this  the  defendant  pleaded  non 
assumpsit,  and  set-off 

The  issues  thus  formed  were,  by  agreement  of  the  parties, 
submitted  to  the  court  for  trial  without  a  jury;  and  after  the 
hearing  of  the  proof  and  arguments,  the  court  ordered  "  that 
plaintiff's  declaration  in  assumpsit,  and  defendant's  plea  of 
general  issue  be  stricken  from  the  files,"  for  the  following 
reasons:  {Here  insert  tJie ground  fortlie  same) ;  and  thereupon 
the  court  found  the  issue  for  the  defendant,  and  assessed  his 

damages  at  the  sum    of dollars,  for   which   a  judgment 

was  rendered  in  favor  of  the  defendant,  and  against  the 
plaintiff. 

That  during  the  progress  of  said  trial  the  following  ques- 
tions of  law  did  arise  and  were  determined  by  me,  as  such 
judge,  in  said  cause,  that  is  to  say  : 

First.     Whecher  or  not  said  plaintiff  had  a  right  to  amend 

(/)  See  86  111,  560. 


!52  AGREED  CASES. 


Certificate  of  judge  of  questions  of  law,  etc. 


his  distress  warrant,  so  as  to  make  the  same  cover  claims  and 
demands  outside  of  and  not  covered  by  the  claim  and  demand 
for  rent,  by  adding  the  common  counts  for  goods,  wares  and 
merchandise  sold  and  delivered,  work  and  labor  done,  money 
loaned,  etc. 

Second.  Whether  or  not,  under  an  amendment  to  the  dis- 
tress warrant  covering  the  aforesaid  claims  and  demands  of 
the  plaintiff,  outside  of  the  claims  and  demands  for  rent,  the 
plaintilfhad  the  right  to  make  proof  of  such  outside  claims 
and  demands. 

Third.  Whether  or  not,  in  case  of  distress  for  rent,  the  ten- 
ant having  entered  his  appearance,  and  filed  a  claim  of  set-off 
greater  in  amount  than  the  landlord's  claim  for  rent,  the  land- 
lord had  the  right,  under  any  amendment  which  could  be 
legitimately  allowed  to  the  distress  warrant,  to  present  and 
make  proof  of  other  claims  and  demands  against  the  tenant, 
outside  of  the  claim  and  demand  for  rent  upon  which  the  dis- 
tress for  rent  was  based. 

Fourth.  Whether  or  not,  upon  the  trial  of  a  proceeding 
based  upon  distress  for  rent  by  the  landlord  against  the  ten- 
ant, when  the  tenant  has  entered  his  appearance  in  said  cause, 
the  plaintiff  has  the  legal  right  to  plead,  and  make  proof  of 
claims  and  demands  outside  of  claims  and  demands  for  rent 
upon  which  the  distress  for  rent  was  based,  and  not  growing 
out  of,  or  dependent  upon  the  relation  of  landlord  and  tenant, 
and  recover  a  judgment  against  the  defendant  in  such  suit  or 
proceeding  for  such  outside  claims  and  demands,  if  the  proof 
warrants  such  judgment. 

And  I  further  certify,  that  each  and  all  of  said  questions 
were  determined  by  the  undersigned,  as  judge  of  said  court, 
against  the  plaintiff,  the  undersigned  holding  that  the  claims 
and  demands  outside  of  the  claims  and  demands  for  rent  could 
not  be  pleaded,  and  given  in  evidence  by  the  landlord  in  such 
a  proceeding,  but  that  the  tenant  had  the  right  to  plead  and 
prove  matters  of  set-off  against  the  landlord,  to  which  ruling 
of  the  court  the  plaintiff  then  and  there  excepted,  and  prayed 
an  appeal  to  the  Supreme  Court;  and  now  by  the  assent  of 
the  parties  litigant,  the  foregoing  questions  or  points  of  law, 
and  the  decisions  thereon  are  hereby  certified  to  the  Appellate 
Court  {or  Supreme  Court)  of  the  State,  for  review,  in  conformity 
with  the  statute  in  such  case  made  and  provided. 

Dated,  etc. 

,  Judge. 


i 


AGREED  CASES.  S^s 


Agreement  as  to  questions  of   law,  etc. 


No.  360.     Agreejuent  as  to  questions  of  law  arising  in  the  case. 
(Under  Sec.  75  of  the  Practice  Act.) 

(  Venue,  and  title  ofcaiise  as  in  No.  Jj4,  ante.) 

We,  the  undersigned,  E.  F.,  attorney  for  the  plaintiiT,  nnd 
G.  H.,  attorney  for  the  defendant,  in  the  above  entitled  cause, 
tried  and  finally  determined  in  said  court,  in  pursuance  to  the 
mutual  agreement  of  the  respective  parties,  and  the  statute  in 
such  case  made  and  provided,  do  hereby  agree,  and  certify  as 
to  the  questions  or  points  of  law  arising  in  the  progress  of 
the  trial  of  said  cause;  and  that  the  same  may  be  filed  in  said 
court;  and  that  a  copy  of  such  certificate,  certified  by  the 
clerk  of  said  court,  with  the  decision  thereon,  and  the  final 
decision  in  the  case,  to  the  Appellate  Court  {or  Supreme  Court), 
and  filed  therein  ;  that  is  to  say : 

That  this  was  an  action  of  assumpsit,  and  an  attachment 
issued  thereon,  in  favor  of  the  plainiifF,  and  levied  upon  the 
real  estate  of  the  defendant.  That  the  cause  assigned  in  the 
affidavit  for  issuing  of  the  attachment,  was  that  the  defend- 
ant was  a  non-resident  of  the  state  of  Illinois.  That  the  de- 
fendant appeared,  and  filed  a  plea  in  abatement  to  the  writ, 
denying  that  at  the  time  of  the  issuing  of  the  writ,  he  was  a 
non-resident  of  the  state. 

On  the  trial,  the  plaintiff  proved  that  at  the  time  the  writ 
in  attachment  was  issued,  which  was  on  the  20th  day  of 
August,  1878,  the  defendant  was  in  Minnesota,  and  had  been 
there  since  he  left  Chicago,  in  April,  1878;  and  to  sustain 
the  allegation  of  his  affidavit,  he  testified  that  the  defendant 
told  him  before  he  left  Chicago,  that  he  was  going  to  Minne- 
sota to  reside  permanently.  A  witness  also  testified  on  be- 
half of  the  plaintiff,  that  a  few  days  before  the  attachment  was 
sued  out,  he  saw  the  defendant  in  Minneapolis,  who  then 
told  him  that  he  intended  residing  in  Minnesota,  and  had 
come  there  to  reside,  and  never  intended  to  return  to  Illinois 
to  live. 

The  defendant,  to  prove  the  issue  raised  by  his  plea,  testi- 
fied that  he  did  not  have  the  conversation  testified  to  by 
plaintiff  and  his  witness;  that  he  went  to  Minnesota  with  no 
intention  of  residing  there,  but  upon  business  ;  that  he  was  a 
single  man,  and  always  intended  to  return  to  Chicago;  and 
did  return  there  a  short  time  after  this  suit  was  commenced, 
and  has  resided  there  ever  since. 

The  defendant  then  offered  to  read  in  evidence,  the  depo- 
sition of  G.  A.,  who  deposed  substantially,  that  about  the 
time  the  defendant  left  Chicago,  he   told   him   he   was   going 


854  AGREED  CASES. 

Agreement  as  to  questions  of  law,  etc. 


1 


away  that  afternoon  or  the  next  day,  to  St.  Paul  or  Minne- 
sota, to  collect  money  that  was  due  him.  That  the  money 
was  due  and  he  did  not  expect  to  have  much  trouble,  and 
that  he  would  not  be  gone  a  great  while.  Also,  the  deposi- 
tion of  R.  B.,  who  deposed  that  in  the  latter  part  of  March, 
or  the  beginning  of  April,  a  few  days  before  the  defendant 
left,  he  had  a  conversation  with  him,  in  which  the  defendant 
told  him  that  he  was  going  to  make  a  trip  to  Minnesota 
where  he  was  acquainted  with  millers ;  and  the  witness,  who 
was  in  the  flouring  business,  suggested  he  would  introduce 
him  to  the  firm  of  G.  S.  &  Co.,  for  the  purpose  of  establi -fil- 
ing some  business  relations  ;  and  after  the  introduction,  wit- 
ness thinks  the  defendant  suggested  that  on  his  return  he 
would  make  permanent  arrangements  with  the  firm  either  for 
a  stipulated  salary  or  a  certain  commission,  on  all  the  con- 
signments received  here  through  his  instrumentality.  And 
also  the  deposition  of  E.  S.,  who  testified  that  in  the  latter 
part  of  April,  1 878,  he  had  a  conversation  with  the  defendant, 
who  told  him  he  would  start  for  St.  Paul  to  arrange  some 
business  matters  of  which  he  had  previously  spoken,  about  a 
certain  draft  of$i,000,  which  was  withheld,  and  also  to  make 
arrangements  with  regard  to  shipments  of  flour  to  this 
market;  and  that  he  might  be  gone  two  weeks  or  a  month. 

To  the  reading  of  these  depositions,  and  each  of  them,  the 
plaintiff  objected,  on  the  ground  that  such  evidence  was  in- 
competent; and  the  court,  sustaining  the  objection,  excluded 
the  testimony  from  the  jury.  To  which  rulings  of  the  court, 
the  defendant  then  and  there  excepted.  Whereupon  a  ver- 
dict was  rendered  for  the  plaintiff;  and  on  overruling  a  motion 
in  writing  to  set  aside  the  verdict  and  for  a  new  trial,  to  which 
the  defendant  excepted,  the  court  rendered  a  judgment  against 
the  defendant. 

And  we,  the  attorneys,  as  aforesaid,  hereby  agree  and  cer- 
tify as  to  the  questions  or  points  of  law  arising  in  the  case, 
which  are  as  follows,  viz.: 

First.  Whether  or  not,  the  depositions  of  G.  A.,  R.  B.  and 
E.  S.,  offered  by ,  the  defendant,  and  excluded  by  the  court, 
were  competent  testimony  in  this  cause. 

Second.  Whether  or  not  the  court  erred  in  denying  the 
defendant's  motion  to  set  aside  the  verdict  of  the  jury  and 
for  a  new  trial,  on  the  ground  of  the  refusal  of  the  court  to 
permit  said  depositions  to  be  read  to  the  jury.  ♦ 

Dated,  etc. 

E.  F.,  Attorney  for  Plaintiff. 
G.  H.,  Attorney  for  Defendant. 


AGREED  CASES.  855 

Decision  of  judge   etc. 

No.  361.     Decision  of  the  judge  upon  the  questions  of  law  aris- 
ing in  case  finally  determined. 
(Under  Sec.  75,  Practice  Act.) 

( Venue,  and  title  of  cause  as  in  No.  J5/,  ante.) 

The  parties  litigant  having  assented  and  agreed  as  to  the 
questions  or  points  of  law  arising  in  this  cause;  and  the  same 
having  been  certified  by  the  counsel  or  attorneys  of  the  re- 
spective parties,  who  have  signed  their  names  thereto,  and 
such  certificate  having  been  filed  in  this  court ;  the  under- 
signed, judge  of  said  court,  does  determine  the  said  several 
questions  or  points  of  law  arising  in  the  case,  in  favor  of  the 
plaintiff;  the  undersigned,  as  such  judge,  holding  that  the 
said  testimony  contained  in  said  depositions,  and  each  of  the 
same  was  incompetent;  and  that  the  court  did  not  err  in 
overruling  the  defendant's  motion  to  set  aside  the  verdict  of 
the  jury  and  for  a  new  trial,  on  the  ground  of  the  refusal  of 
the  court  to  permit   said  depositions  to  be  read  to  the  jury. 

To  which  determination  of  the  court  the  plaintiff  then  and 
there  excepted  ;  and  prayed  an  appeal  to  the  Appellate  Court. 
And  the  foregoing  questions  or  points  of  law,  and  this  decis- 
ion thereon,  and  the  final  decision  in  this  cause,  are  directed 
to  be  certified  by  the  clerk  of  this  court  to  the  Appellate 
Court  of  this  state  for  review,  in  conformity  with  the  statute 
in  such  case  made  and  provided. 

Dated,  etc.  Judge. 

Rule  20  of  the  Supreme  Court  provides,  that 
"  No  judgment  will  be  pronounced  in  any  agreed  case 
placed  upon  the  docket  of  this  court,  unless  an  affidavit  shall 
be  filed,  setting  forth  that  the  matters  presented  by  the  rec- 
ord were  litigated  in  good  faith  about  a  matter  in  actual  con- 
troversy between  the  parties,  and  that  the  opinion  of  this 
court  is  not  sought  with  any  other  design  than  to  adjudicate 
and  settle  the  law  relative  to  the  matter  in  actual  controversy 
between  the  parties  to  the  record,"  (w) 

iV<?.  362.     Affidavit  that  matters  in   agreed  case    are  litigated 
in  good  faith. 

( Venue,  and  title  of  cause  as  in  No.  jj^,  ante.) 

A.  B.,  of,  etc.,  on  oath  states  that  he  is  the  plaintiff  in  the 

(///)   93  111.  7;    Puterb:.ugh's  Ch.  PI.  cV  Pr.,829. 


Sq6 


AGREED  CASES. 


Affidavit  that  matiers  are  litigated  in  good  faitli. 


above  entitled  cause;  that  the  matters  presented  by  the  rec- 
ord in  said  cause,  were  htigated  in  good  faith  about  matter  in 
actual  controversy  between  the  parties  hereto  ;  and  that  the 
opinion  of  this  court  is  not  sought  with  any  other  design  than 
to  adjudicate  and  settle  the  law  relative  to  the  matters  in 
actual  controversy  between  the  parties  to  the  record. 

A.  B. 
Subscribed  and  sworn  to,  etc. 


ARBITRATION   AND    AWARD.  857 

In  suits  pending. 


CHAPTER  XXXV. 

ARBITRATION  AND  AWARD. 

Arbitration  is  an  amicable  mode  of  settling  disputes  by- 
referring  them  to  the  decision  of  one  or  more  individuals 
mutually  agreed  upon  by  the  parties.  The  agreement  is  called 
a  submission;  the  persons  agreed  upon  are  called  arbitrators  ; 
and  their  decision  is  called  an  award.  The  purpose  is  to  avoid 
needless  and  expensive  litigation  ;  and  to  expedite  the  settle- 
ment of  controversies.  The  object  has  met  with  so  much 
favor,  that  statutes  have  been  enacted  regulating  and  direct- 
ing the  proceedings.  This  class  of  submissions  are  called 
statutory  submissions,  and  in  all  essential  particulars,  to  be 
effective,  must  conform  substantially  to  the  statute. 

I.      STATUTORY  SUBMISSION. 

In  suits  pending. — Section  i  of  chapter  10  of  the  statute  of 
Illinois  (a)  entitled  "  Arbitration  and  Award,"  provides 

"  That  whenever  the  parties  to  any  suit  pending  in  any 
court  of  record  shall  be  desirous  and  willing  to  submit  the 
matter  involved  in  such  suit  to  the  decision  of  arbitrators,  an 
order  shall  be  entered  directing  such  submission  to  three  im- 
partial and  competent  persons,  to  be  named  in  such  order — 
such  arbitrators  to  be  agreed  upon  and  named  by  the  parties. 
But  if  the  parties  are  unable  to  agree,  each  shall  name  one, 
and  the  court  the  third." 

This  section  relates  exclusively  to  pending  suits  ;  in  which 

(a)   1  Starr  &  Curtis'  An.  Stat.  300;  Rev.  Stat.  (1877)  141. 


858 


ARBITRATION   AND    AWARD. 


Proceedings    by  arbitrators — Oath  of   arbitrators. 


class  of  cases  the  court  has  authority  to  enter  an  order  sub- 
mitting the  matter  involved  to  three  arbitrators  to  be  named 
in  the  order.   {//) 

Under  this   section    the   court   has  no  authority  to  order  a 

submission  to  one  arbitrator,  or  to  any  greater  or  less  number 

.  than  three  ;  nor  has  the  court  authority  to  make  an   order  of 

submission  in  respect  to  any  matter  not  involved  in  a  pending 

suit,  {c) 

Proceeding's  by  arbitrators. -_ — Section  2  of  the  statute  referred 
to,  provides  that 

"  The  arbitrators  appointed  in  pursuance  to  the  foregoing 
provisions,  or  a  majority  of  them,  shall  proceed  with  diligence 
to  hear  and  determine  the  matters  in  controversy.  They 
shall  appoint  a  place  and  time  for  hearing,  and  adjourn  the 
same  from  time  to  time,  as  may  be  necessary ;  and  on  the 
application  of  either  party,  and  for  good  cause,  they  may  post- 
pone such  hearing  from  time  to  time,  not  extending  beyond  the 
next  term  of  the  court  in  which  the  suit  is  pending,  if  the  sub- 
ject-matter be  in  suit." 

After  the  arbitrators  shall  have  appointed  a  place  and  time 
for  hearing,  they  should  give  the  respective  parties  notice 
thereof  It  is  essential  to  the  validity  of  an  award  that  such 
notice  be  given  as  will  afford  them  an  opportunity  to  be 
heard,  {d^  And  to  set  aside  an  award,  for  want  of  notice  of 
the  time  and  place  of  hearing,  it  is  not  necessary  to  show  cor- 
ruption on  the  part  of  the  arbitrators,   (e) 


Oath  of  arbitrators. — Section  3  of  the  act  relating  to  arbi- 
trations and  awards,  requires  that 

"Before  proceeding  to  hear  any  testimony  in  the 
cause,  the    arbitrators    shall    be    sworn    faithfully    to    hear, 

(6)   12  Bradw.  587;  61  111.  470. 
{c)  12  111.  590;   15  111.  36S;   27  III.   158. 

[d]  54  111.  205  ;  75  111.  24;  III  111.  511;  8  Bosw.  313;  I  Dall,  1S7;  6  Cow. 
103  ;    6  B.  Monr.  260. 

{e)   75  111.  24;    20III.3S3. 


ARBITRATION   AND    AWARD.  859 

Oath    of  arbitrators. 

examine  and  determine  the  cause,  according  to  the  principles 
of  equity  and  justice,  and  to  make  a  just  and  true  award 
according  to  the  best  of  their  understanding;  which  oath  may 
be  administered  by  any  officer  authorized  to  administer 
oaths." 

There  seems  to  be  a  conflict  of  authority  as  to  whether  a 
statutory  award  is  vaHd,  if  the  arbitrators  are  not  sworn, 
where  the  statute  directs  that  they  shall  be  In  Louisiana 
and  Kentucky  it  has  been  held  that  the  award  is  void  if  they 
are  not  sworn.  { g-)  In  New  Jersey  it  has  been  decided  both 
ways.  (//)  In  New  York,  Missouri,  Wisconsin  and  Illinois, 
and  perhaps  in  other  states,  it  is  held,  that  the  parties  may 
waive  the  requirement  of  the  statute;  and  that  if  they  tacitly 
go  on  with  the  hearing  before  unsworn  arbitrators,  the}'  shall 
be  deemed  to  have  so  waived  the  oath,  (i) 

It  would  certainly  be  a  fraud  for  one  of  the  parties,  noticing 
the  omission  to  take  the  oath  required  by  the  staiute,  to  keep 
silent,  and  if  the  award  should  be  favorable,  to  still  remain 
silent,  but  if  unfavorable,  to  move  to  set  it  aside  because  of 
the  undisclosed  omission ;  and  it  is  doubtful  whether  the 
neglect  to  take  the  oath  would  be  fatal,  even  on  a  motion  for 
judgment  under  the  statute.   (/) 

An  arbitrator  will  not  be  allowed  to  impeach  his  award  by 
merely  saying  that  he  and  his  co-arbitrators  neglected  to  be 
sworn.   (/§) 

Whether  arbitrators  are  sworn  or  not,  the  award  will  be 
binding  as  a  common  law  award,  and  the  party  in  whose  favor 
it  is  rendered,  cannot,  merely  because  the  arbitrators  were  not 
sworn,  be  deprived  of  his  right  to  sue  upon  the  award,  or  file 
a  bill  to  enforce  its  performance.     If  the  submission  does  not 

iff)   13  La.  Ann.  558;   I  Littell,  247;   2  liibb,  166. 
(h)   I  Hoist.  393;  2  Butcher,  368. 

(i)  I  Deni  \  440;  S.  C,  4  Comst.  157;  24  Wend.  258;  47  Mo.  4SS;  15  Wi?, 
190;  3  Bradw.  511. 

(/)  3  Bradw.  515;  6  Vf.  666;  6  Pnna.  (Ky.)  9;   3  Ind.  277. 
\k)  28  111.  30;  3  Bradw.  511  ;  ll  111.  375. 


86o  ARBITRATION   AND   AWARD. 

Subj:oenas — Witnesses — Swearing  snme — The  hearing. 

require  the  arbitrators  to  be  sworn,  the  award  is  clearly  valid 
as  a  common  law  award.  (/) 

To  entitle  the  prevailing  party  to  a  judgment  upon  the 
award,  the  arbitrators  should  be  sworn  as*  well  as  the  wit- 
nesses. The  solemnities  under  which  testimony  is  taken,  as 
provided  in  the  statute,  must  not  be  disregarded,  {in)  But  it 
need  not  appear  upon  the  face  of  the  award  that  the  arbitra- 
tors were  sworn,   {n) 

SubpcEiias — Witnesses — Szvearing  same. — It  is  provided  in 
section  4  of  the  statute  referred  to,  that 

"  The  several  clerks  of  the  Circuit  Courts,  and  the  justices 
of  the  peace  in  their  several  counties,  may  issue  subpoenas  for 
the  attendance  of  witnesses  before  arbitrators;  if  any  witness 
after  being  duly  summoned,  shall  fail  to  attend,  the  arbitrators 
may  issue  an  attachment  to  compel  his  attendance,  and  the 
said  witness  shall  moreover  be  liable  to  the  party  for  refusing 
to  attend  the  same  as  in  trials  at  law.  Any  one  of  the  arbi- 
trators may  administer  oaths  and  affirmations  to  witnesses  ; 
they  may  punish  contempts  committed  in  their  presence  dur- 
ing the  hearing  of  a  cause,  the  same  as  a  court  of  record,  and 
may  admit  depositions  to  be  read  in  evidence,  the  same  as  in 
trials  at  law." 

Tlie  hearing. — It  is  a  rule  that  all  the  arbitrators  must 
act  and  act  together.  They  must  each  be  present  at  every 
meeting  ;  and  the  witnesses  and  the  parties  must  be  examined 
in  the  presence  of  them  all,  for  the  parties  are  entitled  to  have 
recourse  to  the  arguments,  experience  and  judgment  of  each 
arbitrator  at  every  stage  of  the  proceedings,  brought  to  bear 
on  the  minds  of  his  fellow  judges,  so  that  by  conference  they 
shall  mutually  assist  each  other  in  arriving  at  a  just  decis- 
ion. {0) 

(/)  77  111.  515  ;  16  111.  34,  HI;  3  Bradw.  511  ;  3  Neb.  388;  28  Vt.  776;  1 
Barb.  Ch.  173;   50  Maine,  407. 

{ill)  61  111.  470;  Sneed,  (Ky.)  29;  2  Miles,  (Penn.)  350. 
(n)  3  Bradw.  511;  Breese,  (Beecher's  Ed.)  323. 
(0)  Russell  on  Arbitration,  209;  28  111.  56. 


ARBITRATION   AND    AWARD.  86 1 

The  award — Publication  of. 

The  aivard — Publication  of. — Section  5  of  the  same  statute 
provides,  that 

"  The  award  of  the  arbitrators,  or  a  majority  of  them,  shall 
be  drawn  up  in  writing,  and  signed  by  such  arbitrators,  or  a 
majority  of  them,  and  a  true  copy  of  such  award  shall,  with- 
out delay,  be  delivered  to  each  of  the  parties  thereto." 

The  authority  of  arbitrators  is  derived  entirely  from  the 
submission,  consequently  their  award  must  not  embrace  any 
matters  not  submitted  to  them  ;  and  if  it  does,  it  will  be  void 
at  least  for  the  e.xcess.  (/>)  If  it  contains  any  allowance  for 
matters  not  submitted,  it  is  wholly  void  if  it  is  not  distin- 
guishable from  the  residue,  and  unless  it  appears  that  the 
consideration  of  the  unsubmitted  matters  was  so  disconnected 
from  the  residue  as  to  have  had  no  influence  upon  it.  {q)  But 
the  award  will  stand  if  the  parties  ratify  it ;  (r)  and  if  one 
party  accepts  from  the  other  party  part  performance  of  his 
part  of  such  an  award,  he  is  estopped  from  afterwards  setting 
up  its  invalidity,  {s)  An  award  in  excess  of  the  matter  sub- 
mitted does  not  annul  the  original  contract  which  was  the 
subject  of  the  reference,  further  than  the  award  pursues  the 
submission,  nor  then,  if  it  is  void  in  toto,  because  the  parties 
are  left  precisely  the  same  as  though  no  award  had  been 
made.   (/) 

Unless  the  award  upon  its  face  shows  that  matters  not 
submitted  are  embraced  in  it,  it  will  be  presumed  that  it  only 
comprehends  matters  that  were  within  the  terms  of  the  sub- 
mission, and  the  burden  is  upon  the  party  attacking  it  upon 
that  ground  to  establish  its  excessive  character.   (//) 

In  New  Hampshire  it  is  held,  that  an  award  covering  mat- 
ters in  excess  of  the  submission  will  not  be  set  aside  for  that 

(/)  72  111.  158;  92  111.  609;  34  Vt.  121;  15  Ala.  398;  59  Peiin.  309;  13 
Johns.  27 ;  8  N.  H.  82  ;^  6  Pick.  269. 

[q)   10  Bradw.  527;  27  111.   374;   109  111.  340;  t,2,  M-^ine,  216;  5  Md.  353. 

{r)  3  Gill.  (Md.)  31  ;  6  Vt.  325;   Breese,  (B.  Ed.)  323. 

{s)  19  Pick.  300. 

(<)  3  H.  &  J.  (Md.)  383;  3  Gill.  (Md.)  31. 

(k)  15  111.461;  17  111.  477;  14  III.  5S;  69  111.  179;  6  X.  II.  264;  15  Ala. 
398;  21  Cal.  317;  2  Mich.  359;  29  111.  90. 


862 


ARBITRATION    AND    AWARD. 


Either  party  not  complj'ing,  awaid  may  I;e   filed  in  court. 

reason,  if  the  amount  of  the  excess  is  ascertained  and  released 
or  discharged.  {i>)  But  this  would  depend  entirely  upon  the 
fact,  whether  the  excess  could  be  readily  ascertained,  and 
distinguished  from  the  residue.    (7c) 

The  award  must  be  co-extensive  with  the  submission,  and 
cover  all  the  matters  submitted,  (x)  And  if  the  arbitrators 
refuse  to  decide  upon  some  matters  submitted,  their  award 
will  be  void,  (j)  But,  even  though  the  award  does  not  in 
terms,  yet,  if  in  effect  it  includes  all  the  matters  submitted,  it 
is  valid.  (^) 

An  award  must  be  certain  to  a  common  intent ;  [a)  but 
every  intendment  is  made  in  its  favor,  {/;)  where  no  fraud, 
corruption  or  unfairness  is  shown,   {c) 

In  order  to  invalidate  an  award  upon  the  ground  that  it 
does  not  embrace  all  the  matters  submitted,  it  must  appear 
that  they  were  made  known  to  the  arbitrators,  and  that  they 
declined  or  neglected  to  pass  upon  them,   {d) 

Privia facie  an  award  is  good,  although  not  co-extensive 
with  the  submission,  because  it  is  presumed  that  it  embraces 
all  that  was  called  to  the  attention  of  the  arbitrators;  and  if 
in  fact  other  matters  xvcre  called  to  their  attention,  and  not 
passed  upon  by  them,  the  fact  must  be  proved,  [e) 


Either  party  not  complying^  azvai-d  may  be  filed  in  court. — 
Section  6  of  the  act  in  relation  to  arbitrations  and  awards 
provides,  that 

(v)  23  N.  H.  106. 

(%u)  35  Maine.  542;  20  Bradw.  157;  39  N.  J.  Eq.  193.  Caldwell  oa  Arbitra- 
tion, 321 ;  59Cal.  336. 

(r)   113  II!.  415  ;   II  Wheat.  446  ;  20  N.  H.  171 ;  27  111.  374. 

(;/)  27  Vt.  304;  7  N.  J.  Lsw(2  Halst.),  428;  12  Cal,  333. 

(2)  8  N.  J.  Law,  195;  II  Gray,  435.  29  Mo.  493. 

{a)  61  111.  70;  21  111.  259;  40  111.  267;  75  111.  24;  92  111.  609;  3  Scam. 
428;   69  111.  179. 

(h)  15  111.461;  105  111.  194;  26  111.  305;  14  111.  392;  8  Bradw.  119;  86 
111.  96. 

{c)  17  111.  477;   14  111.  58;   109  III.  340. 

\d)  18  Mo.  251  ;    14  N.  H.  49;   25  111.  361, 

\e)  5  N.  Y.  (I  Seld.)  482;  18  Maine,  251;  2  Gall.  C.  C.  61  ;  3  Rand.  (Va.) 
94;   27  111.  374;    10  Bradw.  527. 


ARBITRATION   AND   AWARD.  863 

Judgment  upon  award — Enforcement  of  award. 

"  If  either  of  the  parties  neglect  to  comply  with  the 
said  award,  the  other  party  may,  at  any  time  within  one  year 
from  the  time  of  such  failure,  file  such  award,  together  with 
the  submission  or  arbitration  bond,  in  the  court  named  in  the 
submission." 

jFiidginent  upon  azvard. — Section  7  declares,  that 

"  The  party  filing  such  award  may,  at  the  next  term  after 
such  filing,  by  giving  four  days'  notice  of  his  intention  to  the 
opposite  party,  and  if  no  legal  exceptions  are  taken  to  such 
award  or  other  proceedings,  have  final  judgment  thereon,  as 
on  the  verdict  of  a  jury,  for  the  sum  specified  in  said 
award  to  be  due.  together  with  the  costs  of  arbitration  and  of 
the  court;   and  execution  may  issue  therefor  as  in  other  cases." 

This  section  applies  as  well  to  arbitrations  in  matters  not  in 
suit,  under  section  16,  post^  as  to  matters  in  suits  pending 
under  section    I,  ante.  {/) 

A  judgment  will  not  be  entered  upon  an  award  unless  it  is 
made  in  pursuance  of  the  statute,  {g)  But  the  court  will 
enter  judgment  on  a  common  law  award  by  the  consent  of 
the  parties.  {/') 

Jurisdiction  to  enter  a  judgment  upon  an  award  of  arbitra- 
tors, being  wholly  given  by  statute,  the  proceedings  must 
conform  strictly  to  the  requirements  of  the  statute,  or  the 
court  will  have  no  jurisdiction  or  authority  to  enter  judgment 
upon  the  award,  {i) 

Enforcement  of  aiuard. — Section  8  of  the  act  relating  to 
arbitrations  and  awards,  provides  that 

"  When  the  award  requires  the  performance  of  any  act 
other  than  the  payment  of  money,  the  court  rendering  such 
judgment  shall  enforce  the  same  by  rule,  and  the  party  refus- 
ing or  neglecting  to  comply  with  such  rule,  may  be  proceeded 
against  by  attachment  or  otherwise,  as  for  a  contempt." 

(/)  12  Bradw.  441. 

(.f)  17  111.  Ill;  15  111.  368;  55  111.  530;  12  Bradw.  5S7;  16  111.  34. 

(«)  90  111.  307. 

(i)  12  Bradw.  587. 

55 


864  ARBITRATION   AND    AWARD. 

Award,  when  set  aside — Fraud    and  mistake. 

This  section  applies  to  arbitrations  under  the  statute  of  con- 
troversies not  in  suit.  When  anything  is  to  be  done  other 
than  the  payment  of  money,  as  where  the  submission  is  of  all 
matters  in  dispute  with  regard  to  a  right  of  way  of  a  railroad 
company,  the  award  could  not  be  one  on  which  a  judgment 
could  properly  be  rendered  for  a  sum  of  money  only.  The 
payment  of  money  auJ  conveyance  of  the  right  of  way  in  such 
a  case,  would  be  properly  made  concurrent  acts ;  but  the 
enforcement  as  a  statutory  award  can  only  be  compelled  under 
the  above  section  8.  (7) 

Award,  zvhcn  set  aside. — It  is  provided  in  section  9  of  the 
the  same  act,  that 

"  If  any  legal  defects  appear  in  the  award  or  other  pro- 
ceedings, or  it  it  shall  be  made  to  anpear  on  oath  or  affirma- 
tion, that  said  award  was  obta.iied  .by  fraud,  corruption  or 
other  undue  means,  or  that  such  arbitrators  misbehaved,  said 
court  may  set  aside  such  award." 

This  section-  applies  to  arbitrations  under  the  statute, 
whether  in  cases  pending,  or  disputes  not  in  suit.   (/') 

Mere  error  of  arbitrators  as  to  the  law  or  facts,  is  not  ground 
for  setting  aside  the  award;  (/)  but  if  the  submission  requires 
an  award  to  be  an  entirety,  an  award  which  is  too  narrow  or 
tao  broad,  will  bind  neither  party,  [iri) 

The  award  of  two  of  three  arbitrators  is  void,  if  the  third 
arbitrator  has  no  notice  to  act  in  the  matter;  or  if  it  purports 
to  be  the  award  of  three,  when  in  point  of  fact,  it  was  only  the 
award  of  two  of  them,  [li) 

Fraud  and  mistake. — An  award  obtained  by  the  fraud  of 
the  party,  {p)  or   by  reason  of  fraud,  corruption,  partiality  or 

(y)  3  Bradw.  511 ;  66  111.  174. 
i^k)  See  sections  16-18,  post. 

\i)  13  111.  454;  16  111.  99;  II  111.  565;  72  111.  15S;  27  111.  374;  69  111  179; 
25  111.  361. 

(;«)  92  111.  609;  20  Bradw.  157;   109  111.  340;  34  Vt.  121 ;  59  Tenn.  309. 

(«)  I  Gilm.  92. 

{p)  2  Day  (.Conn.)  552;  13  Vt.  477;  19  111.  415. 


{ 


ARBITRATION   AND   AWARD.  865 

Fraud    and  mistake. 

gross  misconduct  on  the  part  of  the  arbitrators,  will  be  set 
aside  by  a  court  of  equity,  where  courts  of  law  do  not  possess 
the  power,  as  being  against  equity  and  good  conscience,  {p^ 
unless  the  party  applying  therefor  has  done  that  which 
amounts  to  a  waiver,  {q)  If  there  has  been  no  waiver,  the 
award  may  be  set  aside  upon  those  grounds,  even  though  the 
parties  agreed  in  the  submission  that  there  should  be  no  ex- 
ception or  appeal,   (r) 

In  order  to  impeach  an  award  upon  the  ground  of  fraud, 
corruption  or  misconduct  of  an  arbitrator,  the  proof  must  be 
clear  and  conclusive  and  not  depend  upon  the  naked  asser- 
tion of  the  other  party,  or  upon  mere  suspicion,  (s)  But  it 
may  be  inferred,  where  the  award  is  so  manifestly  unjust,  as 
irresistibly  to  lead  to  the  conclusion,  as,  where  the  amount 
awarded  is  nearly  three  times  as  much  as  was  claimed.  (/) 
To  warrant  the  court  in  setting  aside  an  award  upon  the 
ground  of  fraud  or  corruption  upon  the  part  of  the  arbitra- 
tors, upon  the  ground  of  excessive  damages,  the  amount 
awarded  must  be  so  grossly  extravagant  as  to  negative  the 
idea  that  it  expresses  the  honest  judgment  of  the  arbitra- 
tors. {?() 

If  an  arbitrator  was  intoxicated  during  the  hearing,  the 
award  will  be  set  aside  without  any  other  proof,  as  that  is 
evidence  of  such  misci-)nduct  as  ought  to  vitiate  his  action 
upon  the  matters  between  the  parties,  [v] 

Where  there  is  no  evidence  of  partiality,  an  award  will  not 
be  set  aside,  because  one  of  the  arbitrators  is  a  creditor  of 
one  of  the  parties;  {w)  or  had  previously  expressed  an  opin- 

(/)  6  Humph.  171 ;   13  N.  11.  72;  28  Ohio  St.  102, 
(7)  57  N-  H.  20, 
(;■)  44  Penn.  St.  23. 

(s)   I  N.  J,  Law,  3SS;   10  Yerg.  (Tenn.)  202;    3  Elackf.  68;  2  J.  J,  Marsh- 
346. 

(i)  28  Ga.  398;  13N,  H.  72. 

(«)   17  How.  (U.  S.)  344;  4  Dana,  (Ky.)  229;   17  Johns.  405. 

{v)  28  111.  56. 

{w)   14  Conn.  26;  13  Allen.  19. 


866  ARBITRATION   AND   AWARD. 

Fraud  and  mistake. 

ion  upon  the  matters  in  dispute.  (,r)  And  it  is  no  frround  for 
setting  aside  an  award  of  an  arbitrator,  that  he  had  formerly 
been  counsel  in  another  suit  for  the  party  in  whose  favor  he 
found,  although  this  fact  was  not  known  or  communicated  to 
the  party  against  whom  the  award  was  made,  or  to  his  coun- 
sel, in  the  absence  of  evidence  that  the  fact  was  intentionally 
concealed,  (j) 

A  common  law  award  can  not  be  set  aside  for  mistake, 
either  of  law  or  facts,  unless  the  error  is  so  palpable  as  to 
show  that  injustice  has  been  done,  as  they  are  the  judges  of 
both.  But  under  statutory  submissions,  it  is  held  that  an 
award  may  be  set  aside  for  mistakes  as  to  the  facts,  when  such 
mistake  clearly  appears  upon  the  face  of  the  award;  [z)  and 
the  arbitrators  were  evidently  misled  or  deceived  thereby,  {a) 

The  instances  are  rare,  in  which  an  award  will  be  set  aside 
for  mistake  of  facts,  [b)  And  an  award'will  only  be  set  aside 
upon  the  ground  of  a  mistake  as  to  the  law,  when  the  sub- 
mission requires  that  they  shall  decide  according  to  law,  or 
it  is  evident  from  their  award  that  they  intended  so  to  decide, 
but  acted  under  a  clear  mistake  as  to  what  the  law  was.  {c) 

Private  conversations  concerning  the  controversy  between 
a  party,  his  agent  or  attorney,  and  one  of  the  three  arbitra- 
tors, after  the  selection  of  the  latter,  is  a  ground  in  chancery 
for  setting  aside  the  award  ;  (•/)  but  a  conversation  with  a 
third  party  is  held  to  be  no  ground  for  disturbing  the  award; 
but  an  arbitrator,  after  being  chosen,  should  not  listen  to 
statements  as  to  matters  involved,  except  when  given  in  evi- 
dence, [e) 

It  is  the  dut)^  of  an  arbitrator,  as  of  a  juror  or  judge,  to 

(jr)   5  Maine,  69;  lo  Pick.  275. 

[y)   123  Mass.    I90. 

{z)  2  Swan.  (Tenn.)    213;  52    IIow.   (N.    Y.)  415;    62  N,    Y.  (17    Sick.) 

392. 

{a)  8  Md.  208;  6  Wait's    Ac,  &  Def.  549. 

{b)  33  111  374;  19  111.  425;  6  Mete.  (Mass.)  131 ;  8  Vt.  79  ;  3  Rawle,  84; 
3  Call.  (Va.)  309;  4  Johns.  Ch.  406 ;  2  Greenl.  on  Ev.,  Sec.  78. 

(<r)  5  Ired.  Law,  498;  2  Cal.  74;  13  N,  H.  2S6;  3  Vt.  308. 

{d)  102  111.  169. 

{e)  8  Biadw.  119;  7  Cush.  560;  170  Mass.  473. 


ARBITRATION   AND   AWARD.  867 

Of  award  prepared  by  one  of  the  attorneys — Signing  the  award. 

keep  himself,  as  far  as  possible,  free  from  any  influence  that 
would  lead  to  impair  his  impartiality  or  expose  him  to  the 
suspicion  of  prejudice.  {/)  But  as  a  longer  interval  of  time 
usually  occurs  between  his  selection  and  his  service,  subject- 
ing him  to  greater  exposure,  and  not  being  specially  advised 
of  his  duty,  and  restrained  in  his  conduct  by  the  direction 
and  authority  of  a  court,  greater  latitude  is  to  be  expected 
and  tolerated  in  his  case  than  in  that  of  a  juror.  (^) 

It  is  held  to  be  sufficient  to  authorize  a  court  of  equity  to 
enjoin  a  suit  at  law  upon  an  award,  and  set  aside  an  award, 
that  one  of  the  parties  in  interest  made  a  statement  to  one  of 
the  arbitrators,  in  the  absence  of  the  adverse  party,  designed 
and  having  a  tendency  to  improperly  affect  his  decision  as  an 
arbitrator,  without  showing  that  such  statement,  in  fact,  pro- 
duced any  harmful  result  to  the  other  party.  And  a  party  to 
an  arbitration,  who,  by  overt  acts,  attempts  to  corrupt  or  im- 
properly influence  the  arbitrators,  or  any  one  of  them,  to 
make  an  award  in  his  favor,  will  not  be  heard  to  say  that  he 
was  impotent  to  accomplish  what  he  sought,  and  to  raise  an 
issue  thereupon,  {/i) 

Of  award  prepared  by  one  of  the  attorneys. — The  fact  that 
an  award  of  arbitrators  is  prepared  by  the  attorney  of  the 
successful  party,  affords  no  ground  for  setting  it  aside  where 
it  fully  expresses  the  findings  and  conclusions  of  the  arbitra- 
tors. (/  ) 

Signing  of  the  azvard. — It  is  not  necessary  that  the  award 
should  be  signed  at  the  same  time  and  place;  (y)  nor  that 
the  parties  should  be  present  when  signed.  (/') 

(/)  8  Bradw.  II9;  123  Mass.  139;  5  West  Va.  492. 
{g)  8  Bradw.  125;  l  Dallas,  205;  15  Maine,  54;   5  West  Va.  492. 
{h)   114  111.  56S;  9  Cush.  574;  9  R,  I.  163;  27  Md.  401;   Morse  on  Arb,  & 
Award,  534 ;  2  Story's  Eq.,  sec.  1452  a ;   102  111.  169, 
{i)  113  111.  415.    See  116  111.  147. 
(/)   109  Mass.  46;  7  Cush.  252-  4  Allen,  18. 
i^k)  8  Md.  22;  12  Ind,  20;   113  111.  415. 


m 


868  ARBITRATION    AND    AWARD. 

When  court  may  correct  award — When  motion  to  set  aside. 

IV/icn  court  ?fiay  correct  award. — Section  lo  of  the  act  re- 
lating to  arbitration  and  awards,  provides  that 

"  If  there  be  any  evident  miscalculation  or  misdescription, 
or  if  the  arbitrators  shall  appear  to  have  awarded  upon  mat- 
ters not  submitted  to  them,  not  affecting  the  merits  of  the  de- 
cision upon  the  matters  submitted,  or  where  the  award  shall 
be  imperfect  in  some  matters  of  form,  not  affecting  the  merits 
of  the  controversy,  and  where  such  errors  and  defects,  if  in  a 
verdict,  could  have  been  lawfully  amended  or  disregarded  by 
the  court,  any  party  aggrieved  may  m.ove  the  court  to  mod- 
ify or  correct  such  avvard." 

This  section  does  not  give  the  court  equitable  power  to 
reform  an  award.  It  is  intended  to  give  the  court  authority 
to  correct  awards  in  matters  of  form  merely.  (/) 

When  motion  to  set  aside,  or  modify,  must  be  made. — It  is  re- 
quired by  section  ii  of  the  same  statute,  that 

"  Application  to  set  aside,  modify  or  amend  such  award,  as 
provided  in  the  two  preceding  sections,  must  be  made  be- 
fore the  entry  of  final  judgment  on  such  award.  Provided, 
nothing  herein  contained  shall  be  so  constiued  as  to  deprive 
courts  of  chancery  of  their  jurisdiction,  as  in  other  cases." 

There  is  no  doubt  of  the  power  of  a  court  of  equity  to  cor- 
rect a  mistake  in  an  award  where  it  is  the  mutual  mistake  of 
all  the  arbitrators.  The  award  is  sometimes  treated  as  the 
judgment  of  a  tribunal  of  the'  parties'  own  choosing,  and 
sometimes  as  an  agreement  which  they  have  authorized  the 
arbitrators  to  make  for  them.  Regarding  it  in  the  latter 
character,  courts  of  equity  have  assumed  to  correct  a  mistake 
in  an  award,  where  it  is  mutual,  was  acquiesced  in  by  all  the 
arbitrators,  and  where  the  award,  as  made,  is  not  their  award, 
but,  if  corrected,  would  be  the  award  of  all  of  them,  {ni) 

If  an  award   is   within   the  submission,   and  contains   the 

(/)  26  111.  460.  See  25  111.  522. 

(w)  77  111.  515;  28  111.  30J  3  Scam.  453;  33  III.  375.  See  iS  Bradw.  293; 
114  111.  568. 


ARBITRATION    AND    AWARD.  869 

Error  and    appeals — Compcnsraion  of  arhiir.itors,  etc. 

honest  decision  of  the  arbitrators  after  a  fair  hearing,  a  court 
of  equity  will  not  set  it  aside  for  error  in  law  or  fact,  (n) 

Error  and  appeals. — Section  12  of  the  same  statute,  author- 
izes 

"  Writs  of  error  and  appeals  may  be  taken  from  any  de- 
cision of  the  court  by  the  party  deeming  himself  aggrieved, 
as  in  other  cases;  and  if  the  Supreme  Court  shall  remand  the 
case,  such  further  proceedings  shall  be  had  as  the  nature  of 
the  case  may  require." 

There  is  no  appeal  from  or  review  of  an  award  within  the 
jurisdiction  of  the  arbitrators,  except  for  fraud,  partiality  or 
misconduct.   {0) 

Coinpcnsalion  of  arbitrators — Fees  of  ivitnesscs. — Section  13 
of  the  same  statute  provides,  that 

"Each  arbitrator  shall  be  allowed,  for  every  day's  attend- 
ance to  the  business  of  his  appointment,  ;$2,  to  be  paid  in  the 
first  instance  by  the  party  in  whose  favor  the  award  shall  be 
made,  but  to  be  recovered  cf  the  other  party  with  the  other 
costs  of  suit,  if  the  award  or  final  decision  shall  entitle  the 
prevailing  party  to  recover  costs.  Witnesses  shall  receive  the 
same  fees  for  attendance  at  arbitrations  as  shall  be  allowed 
them  in  the  Circuit  Courts.  Sheriffs,  constables,  clerks  and 
justices  of  the  peace  shall  be  cntit.led  to  the  same  fees  for 
services  performed,  in  relation  to  any  arbitration,  as  shall  be 
allowed  by  law  for  the  like  services  in  their  respective 
courts." 

Arbitrators  m^y  be  compelled  to  duty. — Section  14  of  same 
statute  declares,  that 

"  Arbitrators  may  be  compelled,  by  order  of  the  court  in 
which  any  cause  submitted  to  them  shall  be  pending,  to  pro- 
ceed to  a  hearing  thereof,  and  to  make  report  without  un- 
necessary delay." 

{n)  58  U.  S.  (17  How.)   344. 

ip)  72  111.  15S;  75  III.  90.     Sec  2  Scam.  4SS ;  13  111.  293. 


8/0  ARBITRATION   AND    AWARD. 

Record  of  refereruce. 

Record  of  reference. — It  is  provided  by  section  15  of  the 
same  statute,  that 

"  When  any  cause  pending  in  any  court  shall  be  referred, 
as  herein  provided,  an  entry  of  such  reference  shall  be  made 
on  the  record,  and  day  shall  be  given  to  the  parties,  from 
time  to  time,  until  the  arbitrators  report,  or  they  may  be 
thereof  discharged,  on  filing  sifch  report." 

In  matters  not  in  suit. — Section  16  of  the  statute  relat- 
ing to  arbitrations  and  awards  provides,  that 

"All  persons  having  a  requisite  legal  capacity  may,  by  an 
instrument  in  writing,  to  be  signed  and  sealed  by  them,  sub- 
mit to  one  or  more  arbitrators  any  controversy  existing 
between  them,  not  in  suit ;  and  may,  in  such  submission, 
agree  that  a  judgment  of  any  court  of  record,  competent  to 
have  jurisdiction  of  the  subject-matter  to  be  named  in  such 
instrument,  shall  be  rendered  upon  the  award  made  pursuant 
to  such  submission." 

The  first  section  of  the  act,  as  we  have  seen,  sjipra,  relates 
exclusively  \o  pending  suits,  in  which  class  of  cases  the  court 
has  authority  to  enter  an  order  submitting  the  matter  involved 
to  three  arbitrators.  Section  sixteen,  above  quoted,  relates 
exclusively  to  controversies  7iot  in  suit.  Under  section  one 
the  court  has  no  authority  to  order  a  submission  to  one  arbi- 
trator, or  to  any  greater  or  less  number  than  three  ;  nor  has 
the  court  authority  to  make  an  order  of  submission  in  respect 
to  any  matter  not  involved  in  a  suit  pending.  Under  section 
sixteen,  parties  may  submit  controversies  between  them  to 
any  number  of  arbitrators  mutually  agreed  upon,  but  to 
entitle  them  to  have  a  judgment  rendered  upon  the  award,  it 
must  affirmatively  appear  that  the  submission  was  of  matters 
not  in  suit.  Unless  this  appears  in  the  articles  of  submission, 
the  court  is  without  jurisdiction  to  enter  judgment,  and  the 
party  is  left  to  his  remedy  independent  of  the  statute.   (/) 

The  jurisdiction  of  the  court  in  such  cases  is  conferred 
exclusively  by  the  statute,  and  the    statute  must    be   strictly 

(/)  12  Bradw.  587;  15  111.  368. 


ARBITRATION   AND   AWARD.  871 

Common  law  submission. 

construed,  {q)  But  the  statute  does  not  abridge  the  common 
law  right  of  parties  to  adjust  their  differences  by  arbitra- 
tion.  (;-) 

Proceedings  under  section  16. — Section  17  of  the  same  statute 
provides,  that 

"  Upon  a  submission  under  the  foregoing  section,  the  arbi- 
trators shall  take  the  same  oath,  and  may  compel  the  attend- 
ance of  witnesses,  and  shall  proceed  in  the  same  manner  as  if 
the  submission  had  been  made  in  a  cause  of  pleading." 

Award  under  section  16. — It  is  provided  in  section  18,  that 
"  The  award  and  instrument  of  submission  may  be  filed  in 
a  court  of  record  of  competent  jurisdiction,  wirhin  the  same 
time  and  upon  like  conditions,  and  notice  and  proceedings 
had  thereunder,  and  judgment  entered,  the  same  as  if  the 
award  had  been  made  in  a  suit  pending  in  such  court." 


II.       COMMON    LAW    SUBMISSION. 

Common  law  submissions  differ  from  statutory  submissions, 
in  that  they  are  dependent  entirely  upon  the  agreement  of 
the  parties,  and  have  no  validity  if  either  withdraws  his  assent 
before  an  award  is  made,  and  in  that  the  award  merely  has 
the  force  of  a  debt  in  favor  of  the  person  in  whose  favor  it  is 
made,  against  the  other  party,  and  can  only  be  enforced  by  an 
action  at  law  thereon,  or  by  application  to  a  court  of  chan- 
cery for  a  specific  performance.  But,  while  a  common  law 
award  is  not  a  judgment  in  the  strict  sense  of  the  word,  and 
can  not  be  enforced  as  such,  yet,  it  possesses  many  of  the 
attributes  of  a  judgment  and  in  "many  cases  reaches  further, 
and  more  effectually  settles  controversies  between  parties 
than  would  a  judgment  of  a  court  of  law.  A  court  of  law 
can  only  conclude  the  parties,  as  to  matters  set  forth  in  the 
declaration   under  which  the  judgment  is  rendered,  and  only 

(q)  30  111.  215  ;  IS  111.  36S;  27  111.  158;  36  111.  298;  12  Bradw.  587. 
(r)   16  111.  34.    See  Breese  (B.'s  Ed.)  295;   3  Bridw.  511. 


8/2  ARBITRATION   AND   AWARD. 

How  sul^mitted. 

their  legal  rights,  leaving  all  equitable  rights  still  open  for 
adjustment.  But  an  award  reaches  out  and  embraces  and 
settles  ^//the  rights  of  the  parties  as  to  the  matters  submitted, 
botJi  legal  and  equitable,  and  forever  settl.es  all  controversies 
pertaining  thereto,  so  that  no  other  human  tribunal,  as  be- 
tween the  parties  thereto,  and  their  privies,  can  ever  re- 
adjudicate  them,  unless  the  award  is  first  set  aside  upon  the 
ground  of  fraud,  misconduct  or  mistake,  {li) 

Hoiv  submitted. — At  the  common  law,  a  submission  may 
be  made  either  in  writing  or  by  parol,  by  the  agreement  of  tlie 
parties,  and  an  award  made  in  pursuance  of  a  parol  submis- 
sion is  as  binding  upon  the  parties  as  one  made  in  writing.  {Ji) 
But,  where  a  writing  is  required  to  pass  the  thing  in  con- 
test, such  as  disputes  concerning  real  estate,  the  submission 
and  award  must  be  in  writing;  in  all  other  cases  a  verbal  sub- 
mission and  award  will  effectually  conclude  the  parties,  [c) 
But,  even  if  the  rule  were  otherwise,  relative  to  submissions 
relating  to  land,  such  submission  would  be  void  under  tlic 
statute  of  frauds,  (c/) 

It  is  held  that  matters  relating  to  the  price  of  land  may  be 
submitted  by  parol;  {e)  and  it  has  been  held  in  Pennsylva- 
nia, that  a  parol  submission  as  to  a  boundary  line  is  valid,  (y) 
And  so  is  a  parol  submission  as  to  damages  growing  out 
of  a  contract  relating  to  land,  i^g)  if  the  contract  itself  is  valitl. 

Where  the  submission  is  by  parol,  it  is  material  to  prove, 
not  only  that  both  parties  promised  to  abide  by  the  award, 
but  that  the  promises  were  concurrent  and  mutual,  for  other- 
wise each  promise  is  but  nudum  pactum,  {/i) 

(a)  13  111.  293;  78  111.  286;  3  Scam.  245;  2  Scam.  48S ;  30  III.  4S2;  69  111. 
180;  9  Hun,  (N.  Y.j  166,  169;  14  Id.  139;  6  Wait's  Ac.  &  Del.  506. 

{l>)  75  111.  90;  97  111.  52. 

((-)  16  III.  34;  I  Brev.  448;  2  Barb.  Ch.  430;  4  Blackf.  89;  6  Dana  (Ky.)  9; 
I  Ala.  278;  28  N.  Y.  (I  Tiff.)  147  ;  2  Abb.  Ct.  App.  209. 

[tt)  3  Lilt.  (Ky.)  399,  402;   18  Maine,  255.     See  95  111.  533. 

(e)  7  Cranch,  (U.  S.)  172. 

(/)  7  Watts,  311.     See  also  36  N.  H.  575. 

(jT)  I4lncl.  256. 

{/i)  75  111.  24;  12  Johns.  397;  Peake's  Cases,  227;  2  Grcenl.  Fv.,  sec. 73. 


ARBITRATION   AND    AWARD.  873 

Revocation. 

Revocation. — All  common  law  submissions  to  arbitration, 
whether  by  parol,  in  writing  or  b}'  deeds,  are  revocable,  even 
though  the  parties  expressly  agree  that  they  shall  not  be.  No 
stipulation  in  such  agreements  will  be  sustained,  either  at  law 
or  in  equity,  which  deprives  a  party  from  having  recourse  to 
courts  of  justice  to  settle  their  differences,  if  he  so  elects; 
consequently  independent  of  some  statutory  restrictions,  an 
agreement  of  this  character  can  not  be  made  irrevocable ;  ii)  and 
this  right  may  be  exercised  at  any  time  before  the  award  is 
actually  made;  (7)  and  by  such  revocation  he  annuls  all  con- 
tracts relative  to  the  subnn'ssion,  and  leaves  the  other  parly 
to  rest  entirely  on  the  penalty  of  the  bond,  if  tliere  is  one,  or 
his  remedy  upon  the  case,  if  no  bond  was  entered  into.  {Ji) 

After  an  av/ard  is  made  and  published,  neither  party  can 
revoke  the  submission  without  the  consent  of  the  other.  (/)  If 
the  submission  is  by  parol,  it  may  be  revoked  by  parol,  but 
the  party  must  give  distinct  notice  of  revocation.  (;//)  A  sub- 
mission in  writing  can  only  be  revoked  in  writing;  (;/)  and 
where  the  submission  is  under  seal,  it  has  been  held  that  the 
revocation  must  also  be  under  seal ;  {p)  and  it  has  been  held 
that  a  parol  agreement  between  the  parties  to  waive  and 
abandon  an  award,  made  under  a  submission  under  seal,  can 
not  be  pleaded  in  bar  to  an  action  on  the  bond,  {p) 

If  the  submission  is  made  by  one  party  on  one  side,  and 
two  on  the  other,  one  of  the  two  cannot  revoke  it  without  the 
assent  of  the  other,  {(j) 

The  death  of  one  of  the  parties  to  the  submission  operates 

(/)  3  Scam.  322;  20  Vi.  19S;  27  Ga.  368;  3  Slory    C.  Ct.)  800.    /2,,4  ^(^  ?^ 
(/)   15  Ga.  473;  16  Johns.  205;  I  Conn.  198;  2  Tyler,  (Vt.)  328. 
(A-)   113  Mass.  114;  2  Tyler,  (Vt.)  328;  53  Barb.  590 ;  28  Vt.  763;  26  Maine, 
251. 
,(/)  20  Vt.  198;  13  N.  H.  185, 
(/«)   I  Bac.  Abr.  306;  42  Vt.  159. 

(n)  21  Wis.  401  ;  4  Sneed,  (Tenn.)  262j  3  Ilayw.  42;  8  Johns.  125. 
ip)  26  Maine,  251  ;   13  Allen,  19. 
(/)  8  East,  344. 
{q)  12  Wend.  57S  ;  I  Bac.  Abr.  308. 


874  ARBITRATION   AND   AWARD. 


Who  may   be    arbitrators — General  powers  and  duties. 

as   a   revocation  per  se,  (r)  unless   otherwise   expressly   pro- 
vided in  the  articles  of  submission,  (s) 

If  either  of  the  arbitrators  refuses  to  act,  the  submission  be- 
comes abortive,  and  both  parties  are  released  therefrom ;  (/) 
unless  provision  is  made  for  such  a  contingency  by  agreeing 
upon  a  substitute.  (21) 

Who  may  be  arbitrators. — The  parties  knozving  the  facts, 
may  submit  their  differences  to  any  person,  whether  he  is  in- 
terested in  the  matters  involved,  {i')  or  is  related  to  one  of 
the  parties,  and  the  award  will  be  binding  upon  them  ;  and 
where  knowledge  of  such  facts  comes  to  a  party  after  the  sub- 
mission is  made,  but  while  there  is  still  power  to  revoke,  if  he 
neglects  to  revoke  the  submission,  but  permits  the  award  to  be 
made,  he  is  treated  as  having  waived  the  objection,  and  is 
bound  by  the  award,  {w)  But  if  the  facts  were  unknown  to 
one  of  the  parties,  the  objection  would  be  fatal  to  the 
award,  {x) 

General  poivers  and  duties. — There  is  a  broad  distinction 
between  the  powers  of  arbitrators  under  a  common  law  sub- 
mission, and  those  appointed  under  the  statute ;  and  this  dis- 
tinction must  not  be  overlooked.  In  a  conimon  law  submis- 
sion, the  arbitrators  are  not  required  to  be  sworn,  nor  are 
they  bound  to  coiiform  to  the  rules  of  law  or  equity  m  the 
admission  of  evidence;  or  in  arriving  at  the  result.  So  long 
as  they  keep  within  the  limits  of  the  submission,  and  do  not 
act  corruptly,  and  there  is  no  fraud  or  evident  mistake,  their 
decision  is  conclusive,  {y)  They  have  the  power  to  decide 
upon  both  the  law  and  the  facts,  and  neither  party  can  com- 

(;-)  14  Wend.  90;  3  D.  &  R.  1S4;  2  B.  &  Aid.  394;  I  Marsh.  366. 

(s)  2  Y.  &  J.  II;  3  M.  &  W,  199. 

(0  2  D.  &  R.  158;  17  Ves.  Jr.  242. 

(«)   7  Watts,  (Penn.)  495;  47  Barb.  624;  9  Gray,  1 8. 

\v)  4  W.  &  S.  (Penn.)  205. 

(w)  34  Ala.  107. 

{x)  26  Maine,  251 ;  99  Mass.  459. 

(/)  4  Pick.  179,  192 ;  2  Johns.  Ch.  551. 


ARBITRATION   AND   AWARD.  875 

Recommitting  award. 

plain  that  they  have  made  a  mistake  in  either  respect.  (.::)  They 
are  at  hberty  to  decide  according  to  equity  and  good  con- 
science, irrespective  of  the  rules  of  law  ;  (<?)  and  in  a  case  where 
an  action  of  slander  was  submitted,  and  the  arbitrators 
awarded  damages  for  words  not  actionable,  the  court  refused 
to  interfere;  {b)  and  the  rule  generally  is,  both  at  law  and  in 
equity,  that  arbitrators  are  clothed  with  authority  to  decide 
the  questions  submitted  to  them,  and  that,  if  their  authority 
has  been  fairly  and  impartially  exercised,  their  decision  can 
not  be  revised.  To  warrant  the  court  in  reviewing  their 
action  upon  the  merits,  something  more  than  error  of  law  or 
of  judgment  as  to  the  facts  must  be  established.  It  must  ap- 
pear either  that  they  have  transcended  their  powers,  or  have 
committed  a  mistake  so  gross  and  palpable  as  to  evince  par- 
tiality, corruption  or  grave  misconduct,  {c)  resultmg  in  an 
injury  to  the  party  seeking  to  avoid  their  action  ;  {d)  as  a 
party  benefited  by  a  mistake  has  no  reason  to  complain,  [e) 

Rccoimnitting  aivard. — Under  a  common  law  submission, 
the  courts  have  no  power  to  recommit  an  award  to  the  arbi- 
trators for  correction  or  reconsideration,  or  for  any  purpose. 
When  arbitrators  have  once  executed  their  powers,  by  mak- 
ing and  returning  an  award,  their  powers  expire  and  are  for- 
ever gone,  without  the  express  consent  of  both  parties  to 
recommit  the  matters  in  contest  to  them  again.  (/) 

The  right  of  the  court  to  remit  a  cause  decided  by  arbitra- 
tors to  them  again,  without  the  consent  of  the  parties,  has  no 

(z)  13  Rich.  9;  50  Miss.  2855  14  Allen.  114;  18  Maine,  117;  8  Geo.  8;  20 
Ind.  421. 

{a)  6  Vt.    529. 

\b)  3  Cai.  (N.  Y.)  166. 

{c)  34  Penn.  St.  160;  53  Barb.  342  ;  31  Gi.  I  ;  2  Biy.  (S.  C.)  370 ;  34  Mn. 
524;  I  H.  &  J.  (Md.)  361  ;  22  N.  J.  578  ;  6  Leigh.  (Va.)  62;  17  Texas,  220  ;  7 
Conn.  536;  23  Mo.  272. 

{d)  7  Minn.  374;  2  Root,  (Conn.)  92;  8  Iowa,  40. 

(<?)  13  Maine,  367;  5  Pick.  213;  I  Call,  (Va.)  575;  12  Q.  B.  562;  6  Wait's 
Ac.  &  Def.  519. 

(/■)  Russell  on  the  Powers  and  Duty  of  Arbitrators,  sec.  8,  page  461  ;  Hardin. 
(Ky.)  228;  I  Litt.  (Ky.)  243;  4  Dana,  (Ky.)  613;  8  N.  H.  516;  7  lad.  53, 
699;  4  Comstock,  575  ;  2S  111.  59. 


8/6  ARBITRATION   AND   AWARD. 

Forms  for  submissions  to  arbitrators. 

more  foundation  than  the  right  to  send  a  cause  to  arbitration, 
in  the  first  instance,  without  their  consent.  Great  injustice 
might  be  done  in  such  cases,  as  in  the  interval,  one  party 
may  have  discovered  that  his  rights  were  not  safe  with  the 
arbitrators — that  they  were  prejudiced,  corrupt  or  incompe- 
tent,  (g) 

When  an  award  has  been  set  aside,  the  court  will  proceed 
with  the  case,  as  if  it  had  never  been  referred,  {/i) 

III.       FORMS   FOR    SUBMISSIONS  TO  ARBITRATORS. 

No.  363.     Agreement  to  submit,  suit  pendi)ig. 

In  the Circuit  Court, 

Term,  A.  D.  18—. 

In  an  action  of . 

Know  all  men  by  these  presents:  That  we,  the  above 
named  plaintiff  and  defendant,  do  hereby  mutually  agree  to 
submit  the  matter  involved  in  the  above  entitled  cause  to  the 
decision  and  award  (*)  of  E.  F.,  G.  H.  and  J.  K.,  as  arbi- 
trators, pursuant  to  section  i,  chapter  10  of  the  Revised 
Statutes  of  this  State. 

Dated  this day  of ,  A.  D.  18—. 

A.  B.,  Plaintiff. 
C.  D.,  Defendant. 

No.  364.    Agreement  to  submit  suit  pending,  each  party  select- 
ing one  arbitrator,  and  the  court  the  third. 

{^Proceed  as  in  the  last  form  to  the  (*),  and  then  proceed:')  of 
E.  F.  and  G.  H.  selected  by   said   parties,  and  agree  that  the 
court  may  name  the  third  arbitrator,  pursuant  to  section  i   of 
chapter  10  of  the  Revised  Statutes  of  this  State. 
Dated,  etc. 

A.  B.,  Plaintiff, 
C.  D.,  Defendant. 

{g)  28  111.  60. 

\h)  28  111.  56;  6  Wail's  Ac.  &  Def.  548. 


ARBITRATION   AND   AWARD.  877 

Order  referring  suit  pending  to  arbitrators — Oath  of  arbitrators. 

No.  365.      Order  1'ef erring  suit  pending  to  arbitrators. 

[Title  of  cajise.) 

Upon  the  agreement  of  the  parties  hereto,  it  is  ordered  that 
this  cause  and  the  matters  involved  therein,  be,  and  the  same 
is  hereby  submitted  to  the  decision  of  E.  F.,  G.  H.  and  J.  K., 
as  arbitrators,  agreed  upon  by  the  parties  respectively,  in  pur- 
suance to  the  statute  in  such  case  made  and  provided. 

No.  366.      Oath  of  arbitrators. 

(  Venue,  and  title  of  ca?ise  as  in  N'o.  j6j,  ante.) 

We,  the  undersigned,  to  whom  the  matter  in  controversy 
involved  in  the  above  entitled  cause,  was  submitted,  by  the 
court,  as  arbitrators,  each  of  us,  on  oath  state  that  we,  and 
each  of  us,  will  faithfully  hear,  examine  and  determine  the 
cause,  according  to  the  principles  of  equity  and  justice;  and 
will  make  a  just  and  true  award,  according  to  the  best  of  our 
understanding,  so  help  us  God. 

E.  F. 

G.  H. 

J.  K. 
Subscribed  and  sworn,  etc. 

No.  367.     Award  in  suit  pending. 

(Venue,  and  title  of  cause  as  in  No.  j6j,  ante.) 

To  all  to  whom  these  presents  shall  come,  or  concern,  be 
it  known  and  published: 

That  we,  the  undersigned,  to  whom  the  matters  involved 
in  the  above  entitled  cause  were  submitted  by  the  order  of 
the  court,  therein,  as  arbitrators,  do  declare  and  publish,  that 
we,  after  being  each  sworn,  as  required  by  the  statute,  to 
faithfully  hear,  examine  and  determine  the  said  cause,  accord- 
ing to  the  principles  of  equity  and  justice,  and  to  make  a 
just  and  true  award  according  to  the  best  of  our  understand- 
ing, and  having  appointed  a  place  and  time  for  the  hearing 
of  said  cause,  and  having  given  the  said  parties,  respectively, 
notice  of  the  place  and  time  of  such  hearing,  and  having  been 
attended  by  said  parties  or  their  respective  attorneys,  and 
having  heard  the  proofs  and  allegations  of  the  parties,  and 
examined   the    matters    in    controversy  in  said    cause,    and 


878  ARBITRATION   AND   AWARD. 

Agreement  of  submission   of  a  controversy  not  in  suit. 

being  full^^  advised  in  relation  thereto,  do  make  and  publish 
this,  our  award,  in  writing. 

That,  etc.  {Here  insert  the  matters  determined  and  azvard- 
ed.) 

In     witness    whereof,    we    have    hereunto    subscribed    our 

names  this day  of ,  A.  D.  18 — . 

E.  R,  G.  H.  and  J  K., 

Arbitrators. 

No.  368.     Agreement  of  submission  of  a  controversy  ?iot  in  suit. 
{^Statutory  under  section  16.) 

Know  all  men  by  these  presents :  That  whereas  a  con- 
troversy is  now  existing  and  pending,  but  not  in  suit,  be- 
tween us,  the  undersigned,  in  relation  to  {Here  state  the  nature 
of  the  controversy.) 

That  we,  the  undersigned,  do  hereby  submit  to  E.  F.,  of 
etc.,  [or  E.  F.,  G.  H.  ajid  y.  K.,  of  etc.,)  as  arbitrator,  {or  arbi- 
trators^ the  said  matter  of  controversy  existing  between  us  ; 
and  we  do  hereby  further  agree,  that  a  judgment  of  any  court 
of  record,  competent  to  have  jurisdiction  of  the  subject  mat- 
ter of  said  controversy,  may  be  rendered  upon  the  award 
made  pursuant  to  this  submission,  in  pursuance  of  the  statute, 
in  such  case  made  and  provided. 

Dated,  etc. 

A.  B. 
C.  D. 

No.  369.     Award  in  a  controversy  not  in  suit.     {Statutory  in 

section  16.) 

To  all  to  whom  these  presents  shall  come,  or  may  con- 
cern, be  it  known  and  published  : 

That  I,  E.  Y.iorwe,  E.  F.,  G.  H.  and  J.  K.)  arbitrator,  {or 
arbitrators)  to  whom  the  matter  in  controversy  existing  be- 
tween A.  B.  and  C.  D.  not  in  suit,  was  submitted,  do  declare 
and  publish,  that  I,  {or  zve)  after  being  sworn,  as  required  by 
the  statute,  to  faithfully  hear,  examine  and  determine  the  sai(' 
cause,  according  to  the  principles  of  equity  and  justice,  and 
to  make  a  just  and  true  award  according  to  the  best  of  my  {or 
our)  understanding,  and  having  appointed  a  place  and  time 
for,the  hearing  of  said  cause,  and  having  given  the  said  par- 
ties, respectively,  notice  of  the  place  and  time  of  such  hear- 
ing, and  having  been  attended  by  said  parties,  or  their  re- 


ARBITRATION   AND    AWARD.  879 

General  agreement  for  submission  of  all  matters  in  controversy. 

spective  attorneys,  and  having  heard  the  proofs  and  allega- 
tions of  the  parties,  and  having  examined  the  matters  in 
controversy  in  said  cause,  and  being  fully  advised  in  relation 
thereto,  do  make  and  publish  this,  my  (or  oi/r)  award,  in  writ- 
ing, that  is  to  say: 

That,  etc.     (Here  insert  the  matters  determined  and  awarded^ 
In  witness  whereof,  I  [or  we)  have  hereunto  subscribed  my 

name,  {or  our  names)  this day  of ,  A.  D.  18 — . 

(Signed  by  arbitrator  or  arbitrators.) 

No.  370.      General  agreement  for  submission  of  all  matters  in 
controveisy.     (Common  laiv.) 

Know  all  men  by  these  presents:  That  whereas  differ- 
ences and  controversies  now  exist  and  are  pending,  between 
the  undersigned,  A.  B.  of.  etc,  and  C  D.  of,  etc.,  in  relation 
to  divers  subjects  of  controversy  and  dispute; 

Therefore,  we,  the  undersigned,  do  hereby  submit  said  dif- 
ferences to  the  arbitrament  of  E.  F.,  G.  H.  and  J.  K.,  or  to 
any  two  of  them,  to  arbitrate,  determine  and  award,  of  and 
concerning  all  manner  of  actions,  suits,  bills,  bonds,  special- 
ties, controversies,  trespasses,  damages,  debts,  claims,  de- 
mands, and  all  and  every  other  subject  of  differences  whatso- 
ever, at  any  time  heretofore  had,  possessed,  instituted,  pros- 
ecuted, made,  began,  pending,  existing,  done,  or  suffered  to 
be  done,  committed,  or  pending,  by  and  between  us,  directly 
or  indirectly. 

That  the  said  award  shall  be  made  in  writing,  under  the 
hands  of  the  said  named  arbitrators,  or  any  two  of  them;  ready 
to  be  delivered  to  us  the  said  parties,  or  such  of  us  as  may 
desire  the  same,  on  or  before,  etc. 

That  the  said  award,  when  made,  shall,  in  all  things,  by 
us,  and  each  of  us,  be  well  and  faithfully  kept,  observed  and 
performed. 

Witness  our  hands  (and  seals)  this day  of ,   A. 

D.  18—. 

A.  B.       [sf.al] 
C.  D.       [seal.] 

No.  371.     Agreement  of  submission  of  particular  matter  in  con- 
troversy.  (C 01)11)10 n  lazv.) 

Know  all    men   by  these  presents :     That  whereas   divers 
disputes  and  controversies   have  arisen  and  are  now  depend- 
56 


88o  ARBITRATION   AND    AWARD. 

Arbilration  bond,  to  be  given  by  each  party  to  the  other. 

ing  between  the  undersigned,  A.  B.  of,  etc.,  and  C  D.  o', 
etc.,  touching  and  concerning  {state  the  matter  in  controversy  ) 

That,  for  the  determination  and  ending  of  the  said  contro- 
versies, it  is  hereby  mutually  agreed,  by  and  between  the  said 
parties,  that  all  matters  in  controversy  between  them,  touch- 
ing and  concerning  all  and  every  matter  and  thing  above 
mentioned  and  specified,  shall  be  referred  and  submitted  to 
the  arbitrament  and  determination  of  E.  F.  {or  E.  F.,  G.  H. 
and  y.  K.,  or  any  tivo  of  thcni.) 

That  the  said  award  shall  be  made  in  writing,  under  the 
hand  of  said  arbitrator  {or  under  the  hands  of  said  arbitrators, 
or  any  tzvo  of  tlieni),  ready  to  be  delivered  to  said  parties,  or 

such  of  them  as  shall  desire  the  same,  on  or  before  the 

day  of ,  A.  D.  i8— . 

That  the  said  award,  when  so  made,  shall,  in  all  things  by 
us,  and  each  of  us,  be  well  and  faithfully  kept,  observed  and 
performed. 

{To  be  signed  by  the  parties.) 

The  parties  may  agree  that  each  shall  give  a  bond  to  the 
other  for  the  faithful  compliance  with  the  award  of  the  ar- 
bitrators. In  such  case  the  following  form  of  such  bond  may 
be  used: 

No.   372.     Arbitration  bond,  to  be  given  by  each  party  to  the 

other. 

(* 

Know  all  men  by  these  presents:  That  I,  (A.  B.  or  C.  D.) 
of,  etc.,  am  held  and  firmly  bound  unto  {C.  D.  or  A.  B.)  in 
the  sum  of dollars,  for  the  payment  of  which  Ibind  my- 
self, and  legal  representatives,  by  these  presents. 

The  condition  of  the  above  obligation  is  such,  that  if  the 
above  bounden  {A.  B.  or  C.  D.),  or  his  legal 'representatives 
shall  submit,  perform,  and  comply  with  the  determination  and 
award  of  E.  F.,  G.  H.  and  J.  K.,  the  arbitrators  named  and 
selected  by  said  parties  to  determine  and  award  of  and  con- 
cerning {Here  describe  the  matter  sjibniitted),  in  accordance 
with  the  terms  of  submission  agreed  upon  between  said  par- 
ties, of  even  date  herewith,  then  this  obligation  shall  be  void, 
otherwise  to  be,  and  remain  in  full  force  and  effect. 

Witness  my  hand  and  seal,  this day  of  ,  A.   D. 

18—. 

{To  be  signed  by  the  party  executing  the  bond) 


ARBITRATION   AND    AWARD.  88 1 

Award,  on  common   law    submission,  by  single  arbitrator. 

No,  2,72>-     -^ward,  on  common  laiv  submission,  by  single  arbl- 

ti'ator. 

Know  all  men  by  these  presents  :  That  by  an  agreement 
of  submission,  bearing  date,  on,  etc.,  the  matters  in  difference, 
etc.,  between  A.  B.  and  C  D.,  were  by  them  submitted  to  the 
consideration  of  the  undersigned,  arbitrator,  to  hear,  de- 
termine, and  award  concerning  the  same. 

That  by  virtue  of  said  agreement  of  submission,  and  after 
having  given  the  said  parties,  respectively,  due  notice  of  the 
time  and  place  of  said  hearing,  and  after  hearing  the  proofs 
and  allegations  of  the  respective  parties,  and  examining  the 
subject  in  controversy  between  them,  I  do  determine  and 
award  as  follows: 

That,  etc.  {Here  set  out  the  matters  determined  and 
^zuaj'dcd) 

Witness  my  hand  {and  seal)  this  day  of ,  A.   D. 

i8— . 

E.  F.,       [seal.] 
Arbitrator. 

No.   374.     Award,  on  common  law  submission,  by  three,    or 
more,  or  less,  arbitrators. 

To  all  to  whom  these  presents  shall  come,  or  concern,  be 
it  known  and  published  : 

That  we,  E.  F.,  G.  H.  and  J.  K.,  arbitrators,  to  whom  was" 
submitted  the  matters  in  controversy  existing  between  A.  B. 
and  C.  D.,  as  by  agreement  of  submission,   bearing  date   on, 
etc.,  more  fully  appears. 

That  we,  the  said  arbitrators,  after  having  appointed  a  time 
and  place  for  the  hearing  of  said  matters,  and  after  having 
given  due  notice  thereof  to  the  respective  parties,  and  having 
heard  the  proofs  and  allegations  of  the  parties,  and  examined 
the  matters  in  controversy  submitted,  do  make,  declare  and 
publish  the  following  award  and  determination  concerning 
the  same,  to-wit  : 

That,  etc.  {Here  insert  the  matters  azvarded  and  deter- 
mined^ 

In  witness  whereof,  we  have  hereunto   set  our  hands  {and 

seals)  this day  of ,  A.  D.  18 — . 

E.  F.,  G.  H.  and  C.  D.,     [se.vls.]  • 
Arbitrators. 


882  MISCELLANEOUS  FORMS. 

In  assumpsit — Declarations. 


CHAPTER  XXXVL 

MISCELLANEOUS    FORMS. 

In  addition  to  the  precedents  given  in  the  foregoing  chap- 
ters, space  permits  the  following  miscellaneous  forms  to  be 
added: 

In  Assumpsit — Declarations. 
No.  375.     Commencement  and  conclusion  of  a  declaraiion  in 

ASSUMPSIT. 

In  the Court, 

Term,  A.  D.  18—. 

State  of  Illinois,  \ 

County  of J 

A,  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains  of  C.  D., 
defendant,  of  a  plea  of  trespass  on  the  case  on  promises  ;  (*) 
for  that,  etc.,  {hisert  declaring  part  and  conchide)  to  the  dam- 
age of  the  plaintiff  of dollars;  and  therefore  he  brings 

his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 

{Add  copy  of  instrument,  or  account  sued  o?i.) 

No.  376.     Common  counts  condensed. 

{Commence  as  in  No.  jy^,  ante,  to  the  (*)  aiid  then  proceed :^ 
For  that  whereas,  the  defendant,  at,  etc.,  on,  etc.,  was  in- 
debted to   the  plaintiff  in   the   sum  of dollars,   for  the 

price   and  value   of  goods  then  and  there  sold  and  delivered 
by  the  plaintiff  to  the  defendant,  at  his   request;    and   in   the 

sum  of dollars,  for  the  price  and  value  of  work  then  and 

there    done,    and    materials    for    the    same    provided  by  the 


miscp:llaneous  forms.  883 

On  promise  to  be  accountable  for  goods  sold  to  a  third  person. 

plaintiff  for  the  defendant  at   his  request;  and  in  the  sum  of 

dollars,  for  money  then  and  there  lent  by  the   plaintiff 

to  the  defendant,  at  his  request;  and  in  the  sum  of dol- 
lars, for  money  then  and  there  paid  bj   the   plaintiff  for  the 

use  of  the  defendant,  at  his  request;  and  in  the  sum  of 

dollars,  for  money  then  and  there  had   and   received   by   the 

defendant  for  the  use  of  the  plaintiff;  and  in  the  sum  of 

dollars,  for  money  found  to  be  due  from  the  defendant  to  the 
plaintiff,  on  an  account  then  and  there  stated  between  them  ; 

and  in  the  sum  of dollars,  for  interest  on  divers  sums  of 

money  then  past  due  from  the  defendant  to  the  plaintiff;  and 
whereas,  the  defendant,  afterwards,  on,  etc.,  in  consideration 
of  the  premises  respectively,  then  and  there  promised  to  pay 
the  said  several  sums  of  money,  respectively,  to  the  plaintiff 
on  request,  yet  he  has  disregarded  his  promises  and  has  not 
paid  the  said  several  sums  of  money,  or  any  or  either  of 
them,  or  any  part  thereof,  although  often  requested  so  to  do; 

to  the  damage  of  the  plaintiff  of dollars;  and,  therefore, 

he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 
yAdd  copy  of  account  sued  on.) 

N'o.  377.     On  promise  to  be  accojintable  for  goods  sold  to  a  third 

person. 

{Commence  as  in  No.  jyj,  ante,  to  the  (*),  then  proceed :) 
For  that,  whereas,  heretofore,  to-wit,  on,  etc.,  at,  etc.,  in  con- 
sideration that  the  plaintiff,  at  the  special  instance  and  re- 
quest of  the  defendant,  would  sell  and  deliver  to  one  O.  P.  on 
credit,  all  such  goods  as  the  said  O.  P.  should  have  occasion 
for  and  require  of  the  plaintiff  in  the  way  of  the  plaintiff's 
trade  and  business  of  a  {inerchant),  he,  the  defendant,  under- 
took, and  then  and  there  promised  the  plaintiff  to  be  account- 
able to  the  plaintiff  for  whatever  goods  the  plaintiff  should 
sell  and  deliver  to  the  said  O.  P.  as  aforesaid  ;  and  the  plaint- 
iff avers  that  he,  confiding  in  the  said  promise  of  the  defend- 
ant, did,  afterwards,  to-wit,  on,  etc.,  at,  etc.,  aforesaid,  sell  and 
deliver  to  the  said  O.  P.,  on  certain  credit,  then  and  there 
agreed  upon  between  the  plaintiff  and  the  said  O.   P.,  to-wit, 

• months,  certain  goods  of  great  value,  which  he,  the  said 

O.  P.,  then  and  there  had  occasion  for  and  required  in  the 
way  of  the  plaintiff's  said  trade  and  business,  and  at  and  for 
certain  reasonable  prices  then  and  there  agreed  upon  by  and  be- 
tween the  plaintiff  and  the  said  O.  P.,  amounting  in  the  whole 


884  MISCELLANEOUS  FORMS. 

Declaration  on  promise  to  pay  money  as  difference  in  exchange  of  property. 

to  a   large   sum   of  money,   to-wit,  the  sum  of dollars  ; 

and  although  the  said  credit,  and  the  time  of  payment  of  the 
price  of  the  said  goods,  by  the  said  O.  P.  to  the  plaintiff,  as 
aforesaid,  hath  long  since  elapsed,  yet  thi  said  O.  P.  has  not, 
although  requested  by  the  plaintiff  so  to   do,  as   yet  paid  the 

said  sum  of  dollars,  or  any  part  thereof,  to  the  plaintiff, 

but  has  hitherto  neglected  and  refused,  and  still  neglects 
and  refuses  so  to  do;  of  all  which  said  premises  the  defend- 
ant, afterwards,  to-wit,  on,  etc.,  had  notice  ;  yet  the  defendant, 
not  regarding  his  promise  and  undertaking,  has  not  as  yet 
accounted  to  the  plaintiff,  or  paid  him  the  said  sum  of  money 
for  the  said  goods,  or  any  part  thereof,  although  requested  so 
to  do;  and  has  neglected  and  refused  so  to  do;  and  the  said 

sum  of dollars  still   remains   wholly   due  and  unpaid  to 

the  plaintiff;   to   the   damage  of  the  plaintiff  of -dollars; 

and  therefore  he  brings  his  suit,  etc. 

E.  P.,  Attorney  for  Plaintiff. 
{Add  copy  of  account  sued  on.) 

No.  378.     Declaration  on  promise  to  pay  money  as  difference  in 
exch  inge   of  property. 

{Commence  as  in  No.  j/j,  ante,  to  the  (*)  a?id  then  proceed:) 
For  that  whereas,  heretotbre,  to  wit,  on,  etc.,  at,  etc.,  in  consid- 
eration that  the  plaintiff,  at  the  special  instance  and  request 
of  the  defendant,  would  deliver  to  the  defendant,  a  certain 
{horse)  of  the  plaintiff,  of  great  value,  to-wit,  etc.,  in  exchange 
for  a  certain  {horse)  of  him,  the  defendant,  the  defendant 
undertook,  and  then  and  there  promised  the  plaintiff  to 
deliver  the  said  {horse)  of  the  defendant,  to  the  plaintiff,  and 
to  pay  the  plaintiff  a  certain  sum,  to-wit,  the  sum  of — \ — dol- 
lars, in  exchange  for  the  said  {horse)  of  the  plaintiff;  and  the 
plaintiff  avers  that  he  did,  afterwards,  to-wit,  on  the  same  day 
aforesaid,  at  the  place  aforesaid,  deliver  to  the  defendant  the 
said  {horse)  of  the  plaintiff;  and  although  the  defendant,  in 
part  performance  of  his  said  promise  and  undertaking,  did 
then  and  there  deliver  to  the  plaintiff  the  said  {horse)  of  the 
defendant,  in  exchange  for  the  said  {horse)  of  the  plaintiff; 
yet  the  defendant,  not  further  regarding  his  said  promise  and 
undertaking  has  not,  although  often  requested,  as  yet  paid  to 

the  plaintiff  the  said  sum  of dollars,  or  any  part  thereof, 

but  neglects  and    refuses   so   to  do,   to   the   damage   of  the 

plaintiff  of dollars;  and  therefore  he  brings  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 


MISCELLANEOUS  FORMS.  885 

Declaration  on  a  written  contract  for  employment — Plaintiff  discharge.!,  etc. 

No.  379.     Declaration  on  a  zvritten  contract  for  employmeni — 
Plaintiff  discharged  ivitJiont  cause. 

{^Commence  as  in  No.  jj^.,  ante,  to  the  (*)  and  then  pro- 
ceed:') For  that  whereas,  heretofore,  to-vvit,  on,  etc  ,  at, 
etc.,  the  plaintiff  then  and  there  bein^j  a  book-keeper  by 
occupation,  and  the  defendant  a  merchant,  by  a  certain  agree- 
ment in  writing,  then  and  there  entered  into  between  the 
plaintiff  and  defendant,  the  defendant  agreed  to,  and  did  em- 
ploy the  plaintiff  to  keep  the  books  and  accounts  of  the 
defendant  connected   with  his  said  business  as  a  merchant,  for 

the  period  of years  from  the  date  of  said  contract ;  and 

the  plaintiff  then  and  there  accepted  the  said  employment, 
and  in  consideration  thereof,  the  defendant  then  and  there 
undertook  and    promised   the    plaintiff  to   pay  him    for  such 

services  the  sum  of dollars  per  annum,  paj'able  monthly: 

and  the  plaintiff  further  avers,  that  he  then  and  there  entered 
into  the  employment  of  the  defendant  as  such  book-keeper, 
and  continued  therein  until  on,  etc.,  when  the  defendant, 
without  any  reasonable  or  just  cause,  discharged  the  plaintiff 
from  such  service  and  employment,  and  refused  to  allow  the 
plaintiff  to  continue  therein;  and  the  plaintiff  further  avers, 
that  he  has  always  been  ready  and  willing  and  has  offered 
the  defendant  to  continue  in  the  service  of  the  defendant  as 
aforesaid,  and  to  perform  all  the  duties  required  of  him  to  be 
performed,  according  to  the  terms  of  said  contract ;  and  the 
plaintiff  further  avers,  that  there  is  now  due  him  from  the  de- 
fendant a  large  sum  of  money,  to-wit,  the  sum  of dollars, 

being  the  amount  due  the  plaintiff  under  said  contract,  from 
the  date  of  his  wrongful  discharge  as  aforesaid,  until,  etc. 

And  the  plaintiff  further  avers,  that  afterwards,  to-wit,  on, 
etc.,  he  requested  the  defendant  to  pay  him,  the  plaintiff,  the 
said  sum  of  money,  but  the  defendant  refused,  and  still  re- 
fuses so  to  do;  and  the  said  sum  of  money  remains  wholly 
due  and  unpaid  to  the  plaintiff;  to  the  damage  of  the  plaintiff 

of dollars,  and  therefore  he  brings  his  suit.  etc. 

E.  F.,  Attorney  for  Plaintiff. 

{Add  copy  of  contract  sued  on.) 

No.  380.     Declaration  on  a  verbal  contract  of  employment — 
Plaintiff  discharged  zuithont  cause. 

{^Commence  as  in  No.  jyj,  ante,  to  the  (*)  and  then  proceed:) 
For  that  whereas,   heretofore,  to-wit,   on,  etc.,  at,  etc.,   the 


I 


886  MISCELLANEOUS  FORMS. 

Plea  of  another  action  pending. 

defendant  then  and  there  being  a  merchant,  and  the  plaintifi 
a  salesman,  in  consideration  that  the  plaintiff  would  enter  into 
the  employment  of  the  defendant  as  such  salesman  ;  the  defend- 
ant then  and  there  undertook  and  promised  the  plaintiff  to 
employ  iiim  as  such  salesman,  for  the  period  of  one  year 
from  said  date  ;  and  to  pay  him,  the  plaintiff,  for  such  services 

the  sum  of dollars;   to  be  paid  in  monthly  installments 

of dollars  each,  at  the   end   of  each  and  every  month; 

and  the  plaintiff,  in  consideration  of  such  employment  and 
salary  to  be  paid,  on,  etc.,  entered  into  the  service  of  the 
defendant  as  such  salesman,  and  continued  therein  until,  on, 
etc.,  when  the  defendant,  Avithout  any  reasonable  cause, 
wrongfully  discharged  the  plaintiff  from  his  said  service; 
and  refused  to  permit  the  plaintiff  to  complete  his  contract  for 
service  as  aforesaid  ;  and  the  plaintiff  further  avers,  that  at 
the  time  of  his  discharge,  and  from  thence  until  the  expira- 
tion of  the  period  of  his  employment,  he  was  ready,  able  and 
willing  to  perform  the  duties  of  such  service  for  the  defend- 
ant, and  in  every  respect  to  comply  with  the  terms  of  said 
contract  with  the  defendant;  and  the  plaintiff  further  avers, 
that  by  reason  of  the  premises,  the  defendant  became  liable  to 
pay  the  plaintiff  the  full  arnount  of  the  salary  so  promised  to 
be  paid  for  the  full  period  of  one  year,  and  that  there  is  now 
due  from  the  defendant  to  the  plaintiff,  under  said  contract,  a 

large  sum  of  money,  to-wit, dollars,  and  although  often 

requested,  the  defendant  refuses  to  pay  the  same,  or  any  part 
thereof,  to  the  plaintiff;  and  the  said  sum  of  money  remains 
due  and  unpaid  to  the  plaintiff;  to  the  damage  of  the  plaintiff 

of dollars;  and  therefore  he  brinefs  his  suit,  etc. 

E.  F.,  Attorney  for  Plaintiff. 
(AM  copy  of  account  sued  on.      Coininou  counts  may  also  be 
added.) 

No.  381.     Plea  of  another  action  pending. 

Li  the Court, 


Term,  A.  D.  18—. 


In  an  action  of' 


And  the  defendant  C.  D  ,  by  E.  F.,  his  attorney, 
comes  and  defends  the  wrong  and  injury,  when,  etc.,  and  prays 
judgment  of  the  said  writ  (or  declaration);  because  he  says, 
that  before  the  issuing  of  said  writ,  to  wit,  on,  etc.,  in  the 
same  court   {or  other  court,  describing  it  by  proper  title),   the 


MISCELLANEOUS  FORMS.  8S7 

T'lea  of    total  failure  of  consileration  of  note  given  for  fees. 

plaintiff  impleaded  the  defendant,  and  issued  his  said  writ, 
and  filed  his  declaration  against  him  in  a  plea  of  trespass  on 
the  case  on  promises,  upon  the  same  identical  promises  and 
undertakings  in  the  said  declaration  in  the  present  suit  men- 
tioned, as  by  the  record  and  proceedings  thereof,  remaining 
in  the  said  court,  more  fully  appears;  and  the  defendant  fur- 
ther says,  that  the  parties  to  this  and  the  said  former  suit  are 
the  same,  and  not  other  or  different  persons;  and  that  the 
said  former  suit  so  brought  and  prosecuted  against  him,  the 
defendant,  by  the  plaintiff  as  aforesaid,  is  still  depending  in 
the  said  court;  and  this  the  defendant  is  ready  to  verify ; 
wherefore  he  prays  judgment  of  the  said  writ  {or  dcclaratio)i) 
in  this  suit,  and  that  the  same  may  be  quashed. 

G.  H.,  Attorney  for  Defendant. 
{Add  affidavit) 

No.  382.     Plea  of  total  failure  of  consideration   of  note  given 
for  fees,  {a) 

{First /flea,  non-assjnupsit.  as  ante,  No.  66.) 

And  for  a  further  plea  in  this  behalf,  the  defendant  says 
that  the  plaintiff  ought  not  to  have  his  aforesaid  action  against 
him,  the  defendant,  {or actio  non)  because  he  says  that  the  sole 
and  only  consideration  of  the  said  promissory  note,  in  the 
said  declaration  mentioned,  was  an  agreement  entered  into  by 
the  plaintiff  with  the  defendant  relating  to  his  fees  in  a  murder 
case  pending  in  the  state  of  Missouri;  that  before  and  at  the 
time  of  the  execution  and  delivery  of  said  note  to  the  plaintiff, 
the  plaintiff  had  been  and  was  the  attorney  for  one  G.  H.  in 
said  prosecution  for  murder,  and  had  then  already  earned 
some  fees  therein  ;  and  the  defendant,  then  and  there  being 
desirous  that  the  plaintiff  should  not  make  any  charge  against 
the  said  G.  H.  for  his  legal  services  already  performed,  or  that 
he  might  in  the  future  perform  therein,  it  was  agreed  between 
the  defendant  and  the  plaintiff,  that  if  the  defendant  would  give 
the  plaintiff  the  said  promissory  note  for  the  sum  of dol- 
lars, for  his  fees  in  said  cause,  he,  the  plaintiff,  would  never  make 
any  charge  or  claim  against  the  said  G.  H.  for  his  services  in  said 
cause  ;  that  in  consideration  of  this  agreement  on  the  part  of  the 
plaintiff,  and  for  no  other  consideration  whatever,  the  defend- 
ant executed  and  delivered  the  promissory  note  in  suit  to  the 
plaintiff;  and  the  defendant  further  avers,  that  after  the  matur- 
ity of  said  note,  the  plaintiff,  in  violation   of  said  agreement, 

(a)   13  Bradw.  444. 


888  MISCELLANEOUS  FORMS. 

kejjlication  to  picas. 

brought  suit  against  the  said  G.  H.  for  the  sum  of dol- 
lars, for  his  fees  in  the  said  murder  case;  that  afterwards  the 
said  suit  of  the  plaintiff  against  the  said  G.  H.  was  settled  and 

compromised  Tor  the  sum  of dollars,  paid  by  the  said  G. 

H.  to  the  plaintiff,  in  full  satisfaction  and  discharge  of  his  fees 
as  aforesaid  ;  and  so  the  defendant  says,  that  the  consideration 
upon  which  the  said  note  was  executed,  has  wholly  failed; 
and  this  the  defendant  is  ready  to  verify  ;  wherefore  he  prays 
judgment,  etc. 

G.  IL,  Att'y  for  Deft. 

Replication  to  Pleas, 

No.  383.     Replication  to  a  pica  of  anotJicr  action  pending. 

[Venue,  and  title  of  cause  ^ 

And   the  plaintiff  as  to  the  said  plea  of  the  defendant,  by 

him above  pleaded,  says  precludi  non,  because  he  says 

that  the  said  several  promises  and  undertakings  in  the  said 
declaration  mentioned,  are  not,  nor  aie  any  or  either  of  them., 
any  of,  or  any  one  of  the  same  identical  promises  and  under- 
takings, as  those  or  any  of  those  in  the  said  plea  mentioned, 
and  for  and  in  respect  whereof  the  said  supposed  action  now 
pending  in  the  said  plea  mentioned  was  instituted,  in  manner 
and  form  as  the  defendant  has  in  his  said  plea  alleged  ;  and 
this  the  plaintiff  prays  may  be  inquired  of  by  the  country, 
etc. 

E.  F.,  Att'y  for  Pl'ff. 

No.  384.     Replication  to  a  plea  of  judgment  recovered. 

( Venue,  and  title  of  cause. ) 

And  the  plaintiff  as  to  the  said  plea   of  the   defendant  by 

him above  pleaded,  says,  precludi  non,  because  he  says, 

that  the  said  several  promises  and  undertakings  in  the  said 
declaration  mentioned,  were  not,  nor  was  any  or  either  of 
them,  any  of,  or  any  one  of  the  same  identical  promises  and 
undertakings  as  those  or  any  of  those  in  the  said  plea  men- 
tioned, and  for  and  in  respect  whereof  the  said  supposed 
judgment  in  the  said  plea  mentioned  was  recovered,  in  man- 
ner and  form  as  the  defendant  has  above  in  his  said  plea 
alleged.  And  this  the  plaintiff  prays  may  be  inquired  of  by 
the  country,  etc. 

E.  F.,  Att'y  for  Pl'ff. 


MISCELLANEOUS  FORMS.  8S9 

Double  replications,  etc. 
N'o.  385.     Double  replications. 

{\''cniie^  and  title  of  cause.) 

And   the  plaintiff,  as  to  the  said  plea  of  the  defendant,  by 

)iim above  pleaded,  says,  prccludi  non,  because  he  says, 

etc.     {Hei'e  set  out  first  replication?) 

And  the  plaintiff,  by  special  leave  of  the  court,  here  first 
Jiad  and  obtained,  according  to  the  form  of  the  statute  in  that 

case  made,  as  to  the  said plea  of  the   defendant  above 

pleaded,  further  says,  prccludi  non,  because  he  says,  {Here  in- 
sert second  replication.) 

E.  F..  Atfy  for  Pl'ff. 

N'o.   386.     Replication    of  statute  of  limitations  to  a  plea  of 

set-off. 

(  Venue,  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant,  by 

him above  pleaded,  says,  prccludi  non.,  because  he  says, 

that  the  said  several  supposed  debts  and  causes  of  set-off  in 
the  said  plea  mentioned,  did  not,  nor  did  any  or  either  of 
them,  arise  or  accrue  to  the  defendant  at  any  time  within 
five  years  next  before  the  exhibiting  of  the  bill  of  the  plaint- 
iff in  this  <uit,  in  manner  and  form  as  the  defendant  has  above 
in  his  said  plea  in  that  behalf  alleged.  And  this  the  plaintiff 
is  ready  to  verify;  wherefore  he  prays  judgment,    etc. 

E.  F.,  Att'y  for  Pl'ff. 

No.  387.     Replication  to  a  plea  of  award. 

(Vemie,  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea   of  the   defendant,  by 

him above  pleaded,  says,  prccludi  non,  because  he  says, 

that  the  said  causes  of  action  above  declared  on,  were  not  in- 
cluded in  the  said  submission  to  arbitration,  and  were  not  in 
difference  between  the  parties  thereto  at  the  time  ;  and  this 
he  is  ready  to  veriiy,  etc.,  wherefore  he  prays  judgment,  etc. 

E.  F.,  Atfy  for  Plff. 

N'o.    388.     Replication    to    plea   of   arbitrament  dcnyi)ig    the 

aicard. 

(  Venue,  and  title  of  cause.) 

And  the  plaintiff  as  to  the   said  plea   of  the  defendant  by 
him  above  pleaded,  says  that  the  plaintiff,  by  reason  of 


890  MISCELLANEOUS  FORMS. 

Rejoinders  to  replications. 

anything  by  the  defendant  in  that  plea  alleged,  ought  not  to 
be  barred  froni  having  and  maintaining  his  aforesaid  action 
thereof  against  the  defendant  {or  prccltidi  noii)^  because  he 
says,  that  the  said  arbitrators  did  not  make  any  such  award 
of  and  concerning  the  premises,  in  manner  and  form  as  the 
defendant  has  above  in  his  plea  in  that  behalf  alleged.  And 
this  the  plaintiff  prays  may  be  inquired  of  by  the  country, 
etc. 

E.  F.,  Att'y  for  Pl'ff. 

No.  389.     Replication  to  a  pica  that  note  was  for  money  zvon 

at  play,  (a) 

(  V(7ii/e,  and  title  of  cause.) 

And  the  plaintiff  as  to  the  said  plea    of  the  defendant,  by 

him above  pleaded,  says  precludi  non,  because  he  says, 

that  the  said  promissory  note  was  made  and  delivered  to  him  by 
the  defendant  for  the  sum  of  money  therein  mentioned,  and 
which  was  bona  fide  due  and  owing  to  him  by  the  defendant, 
and  not  for  money  won,  etc.  {negative  the  pled).  And  this 
he  prays  may  be  inquired  of  by  the  country,  etc. 

E.  F.,  Att'y  for  Pl'ff. 


Rejoinders  to  Replicatioxs. 

No.   390.     Coniuiencement   of  a  rejoinder  to  replication  to  a 

special  plea. 

{Venue,  and  title  of  cause.') 

And  the  defendant,  as  to  the  said  replication  of  the  plaintiff 

to  the plea  of  the  defendant,  says,  that  the  plaintiff  ought 

not,  by  reason  of  anything  by  him  in  that  replication  alleged, 
to  have  or  maintain  his  aforesaid  action  thereof  against  him, 
the  defendant,  because  he  says,  that,  etc.  {Here  insert  the 
subject-matter  of  the  rejoinder,  and  if  it  deny  the  replication, 
conclude  thus:)  And  of  this  the  defendant  puts  himself  upon 
the  country,  etc. 

G.  H.,  Att'y  for  Deft. 

{a)  2  D.  &  E.  4J9. 


MISCELLANEOUS  FORMS.  891 

Conclusion  of  a  rejoinder  with  a  verification. 

No.  391.      Conclusion  of  a  rejoinder  with  a  verification. 

And  this  the  defendant  is  readv  to  verify,  wherefore  he 
prays  judgment  if  the  plaintiff  ought  to  have  or  maintain  his 
aforesaid  action  thereof  against  the  defendant. 

G.  H.,  Att'y  for  Deft. 

No.  392.     Rejoinder  to  a  double  replication. 

( Venue,  and  title  of  cause.) 

And  the  defendant  says,  that  the  plaintiff  by  reason  of  any- 
thing in  the  replication  of  the  plaintiff,  first  above  pleaded, 
ought  not  to  have  or  maintain,  etc.,  because  the  defendant 
says.     {Hei'C  insert  first  rejoinder.) 

And  as  to  the  matters  contained  in  the  plaintiff's  replica- 
tion, secondly  above  pleaded,  the  defendant  further  says,  that 
the  plaintiff,  by  reason  of  anything  contained  in  such  replica- 
tion last  mentioned,  ought  not,  etc.,  because  the  defendant 
says,  etc.  {^Insert  second  rejoinder.)  And  this  the  defendanc 
prays  may  be  inquired  of  by  the  country,  etc. 

G.  H.,  Att'y  for  Deft. 

No.  393.     Rejoinder  to  a  replication  to  a  plea  of  aiuard. 

{Venue,  and  title  ofi cajise) 

And  the  defendant  as  to  the  said  replication  of  the  plaintiff, 

to  the plea  of  the  defendant,  says,  actio  non  because  he 

says,  that  the  matters  above  declared  on,  were  included  in 
the  said  submission  to  arbitration,  and  were  in  difference  be- 
tween the  parties  thereto  at  the  time;  and  of  this  he  puts  him- 
self upon  the  country,  etc. 

G.  H.,  Att'y  for  Deft. 

No.    394.      Similiter  to  replication,  concluding  to  the  country. 

{lu:nue,  and  title  of  cause.) 

And  the  defendant,  as  to  the  said  replication  of  the  plaint- 
iff to  the plea  of  the  defendant,  and   which   the   plaintiff 

has  prayed  maybe  inquired  of  by  the  country,  doth  the   like. 

G.  H.,  Att'y  for  Deft. 


Sq: 


MISCELLANEOUS  FORMS. 


In  debt — Declaration. 


In  Debt — Declaration. 


No.  395-     Declaration  to  recover  delinqnent  taxes,  ic) 


Li  the 


Circuit  Court. 


State  of  Illinois, 
County  of 


Term,  A.  D.  i8- 


ss. 


The  People  ot  the  State  of  Illinois,  plaintiff,  by  G.  H., 
Attorney  General,  {or  E.  F.,  States'  Atto/nej/,  etc.,)  complains 
of  C.  D.,  defendant,  of  a  plea  that  he  render  to  the,  plaintiff 
the  sum  of dollars,  which  he  owes  to  and  unjustly  de- 
tains from  the  plaintiff;  for  that  the  defendant,  heretofore,  to- 
wit,  on,  etc.,  was  and  still  is  indebted   to   the   plaintiff  in    the 

sum  of ^  dollars,  for  and  on  account  of  divers  amounts  of 

taxes,  interest,  penalties  and  costs  due  and  unpaid  against 
divers  tracts,  pieces,  parcels  and  lots  of  land  of  the  defendant, 
situated  in  said  county,  and  before  said  day  forfeited  to  the 
State  of  Illinois,  for  the  non-payment  of  the  said  taxes,  inter- 
est, penalties  and  costs,  which  said  real  estate,  together  with 
the  amount  for  which  the  same  was  forfeited,  as  aforesaid,  is 
as  follows,  to-wit:  {Here  insert  description^ 

And  the  plaintiff  avers,  that  the  defendant  on,  to  wit,  the 
first  day  of  May,  A.  D.  i8 — ,  was  and  still  is  the  owner  and 
possessed  of  the  said  real  estate  against  which  the  said  delin- 
quent taxes  are  charged. 

Wherefore,  and  by  force  of  the  statute  in  such  case  made 
and  provided,  an  action  hath  accrued  to  the  plaintiff  to  have 
and  demand  of  and  from  the  defendant  the  said  several 
amounts  of  money,  the  same  being  in  the  aggregate,  the  said 
sum  of dollars,  first  above  mentioned;  yet  the  defend- 
ant, though  requested,  hath  not  paid  the  several  sums  of 
money,  nor  any  or  either  of  them,  nor  any  part  thereof,  but 
fails  and  refuses  so  to  do  ;  to  the  damage  of  the  plaintiff  of 

■ dollars,  wherefore  the  plaintiff  brings  thii  suit,  etc.  [d) 

E.  F.,  Att'y  for  Pl'ff 

(c)  114  111.  474. 

\d)  See  112  111.  272;  95  111.  412;  96  111.  383;  6  Bradw.  19I. 


MISCELLANEOUS  FORMS.  893 

Pleas — Replication. 


Plea. 

No.  396.     Pica  of  eviction  in  an  action  by  landlord  against 

tenant. 

[First  nil  debet,  and  second ,  actio  non.) 

And  for  a  further  plea  in  this  behalf,  the  defendant  says, 
actio  non,  because  he  says,  that  the  plaintiff,  after  the  making 
of  the  said  lease,  and  before  any  part  of  the  said  rent  in  the 
said  declaration  mentioned,  became  due  and  payable,  to  the 
plaintiff,  to-vvit,  on,  etc.,  with  force  and  arms,  etc.,  entered  into 
and  upon  the  said  demised  premises,  and  then  and  there 
ejected,  expelled,  put  out,  and  amoved  the  defendant  from  the 
possession  thereof,  and  kept  and  continued  the  defendant  so 
ejected,  expelled,  put  out,  and  amoved  from  thence  hitherto, 
to-\vit,  at,  etc.,  aforesaid.  And  this  the  defendant  is  ready  to 
verify,  wherefore  he  prays- judgment,  etc.  (e') 

G.  H./Att'y  for  Deft. 


Rkplication. 

No.   397.     Replication  denying  eviction, 

( Venue,  and  title  of  caiise) 

And  the  plaintiff  as  to  the  said  plea  of  the  defendant  by 

him above  pleaded,  says,  preclndi  non,  because  he  sa\-s, 

that  the  plaintiff  did  not,  before  the  said  rent  became  due, 
eject,  expel,  put  out,  or  amove  the  defendant  from  the  posses- 
sion of  the  said  demised  premises,  or  any  part  thereof,  in  man- 
ner and  form  as  the  defendant  has  above  in  his  said  plea  in 
that  behalf  alleged;  and  this  the  plaintiff  prays  may  be 
inquired  of  by  the  country,  etc. 

E.  P.,  Att'y  for  Pl'ff 

(e)  2  Sauiid.  297,  n.  I;  Ld.  Kaym.  1503  ;  i  Sauiid.  204,  n.  i,  2. 


894  MISCELLANEOUS  FORMS. 

In  case — Declarations. 


Lnt  Case — Declarations. 

No.   398.     Against   coinniissioncrs    of  JiigJiways  for  flooding 
land  by  a  ditch,  etc.  {f) 

{Connncnce  as  in  No.  20.^,  ante.) 

For  that  whereas  the  said  phiintifif,  heretofore  and  at  the 
time  of  the  committing  of  the  grievances  hereinafter  men- 
tioned, was,  and  from  thence  hitherto  has  been,  and  still  is, 
lawfully  possessed  of  certain  lands  and  premises,  with  the 
appurtenances,  situate  in  the  county  aforesaid,  which  said  land 
and  premises  the  said  plaintiff,  before  and  at  the  time  as 
aforesaid,  used  and  enjoyed,  and  of  right  ought  to  have  used 
and  enjoyed,  and  still  of  right  ought  to  use  and  enjoy,  to-wit, 
in,  etc.  ;  nevertheless  the  said  defendants,  acting  at  the  time 
aforesaid,  and  long  before  and  hitherto  have  acted  and  still 
act,  as  commissioners  of  highways  of  the  township  of  Wil- 
mington in  the  county  aforesaid,  having  the  care  and  superin- 
tendence of  the  highways  and  bridges  therein,  contriving  and 
unjustly  intending  to  injure,  prejudice  and  aggrieve  the  said 
plaintiff  in  the  possession,  use,  occupation,  and  enjoyment  of 
his  said  lands  and  premises,  and  to  render  the  same  incom- 
modious and  unfit  for  tillage,  and  of  little  or  no  use  or 
value  to  the  said  plaintiff,  whilst  the  said  plaintiff  was  so  pos- 
sessed thereof  and  so  used  and  enjoyed  the  same  as  aforesaid, 
to-wit,  on  the  day  and  year  aforesaid  and  in,  etc.,  wrong- 
fully and  unjustly  cut,  dug  and  made,  and  caused  and  pro- 
cured to  be  cut,  dug,  and  made,  a  certain  ditch,  drain,  trench, 
and  channel,  and  wrongfully  and  unjustly  built  thereupon, 
made,  and  erected,  and  caused  and  procured  to  be  built  there- 
upon, made,  and  erected,  a  certain  grade,  embankment  and 
repair  near  to  the  said  lands  and  premises  of  the  said  plaintiff 
in  so  careless,  negligent,  and  improper  a  manner,  and  kept 
and  continued  the  said  ditch,  drain,  trench  and  channel,  and 
the  said  grade,  embankment  and  repair,  for  a  long  space 
of  time,  to-wit,  from  thence  hitherto,  that  by  reason  thereof 
afterwards,  to-wit,  on  the  day  and  year  aforesaid  and  on 
divers  other  times  afterwards,  and  before  the  commencement 
of  this  suit,  divers  large  quantities  of  rain  water,  and  surface 
water,  and  standing  water,  ran  and  flowed  from  the  said  ditch, 
drain,  trench  and  channel,  and  from  and  along  the  said  grade, 

(J)  86  111.  392. 


MISCELLANEOUS  FORMS.  89: 


For  negligence   in  setting   fire  to  a  prairie, 

embankment  and  repair,  down  to,  upon,  and  against,  and 
into  the  said  lands  and  premises  of  the  said  plaintiff,  and 
walls,  banks,  ditches,  fences,  soil  and  other  parts  thereof  and 
therein  being,  and  thereby  greatly  injured  and  damaged  the 
said  lands  and  premises  of  the  said  plaintiff,  and  the  said 
fences,  walls,  banks,  ditches,  soil,  and  other  parts  thereof,, 
and  by  reason  of  the  premises  the  said  lands  and  premises 
of  the  said  plaintiff  became  and  were  and  are  wet, 
swampy,  and  less  fit  for  use,  occupation,  and  cultivation, 
and  also,  by  reason  of  the  premises,  the  rain  water,  sur- 
face water,  and  standing  water  aforesaid  ran  and  flowed 
in  a  different  direction  or  channel,  and  with  much  greater 
force  and  increased  violence  and  impetuosity  than  it  of 
right  ought  to  have  and  otherwise  would  have  done,  unto 
and  against  the  lands  and  premises  of  the  said  plaintiff,  and 
the  fences,  banks,  walls,  soil,  and  other  parts  thereof  as  afore- 
said, and  undermined,  washed  away,  damaged,  and  destroyed 
the  said  lands  and  premises  of  the  said  plaintiff,  and  the 
fences,  banks,  walls,  soil,  and  other  parts  thereof,  whereby 
the  plaintiff  has  suffered  great  damage,  to-wit,  etc. 

E.  R,  Atfy  for  Pl'ff 

No.  399.     For  negligence  in  setting  fire  to  a  prairie,  (g) 

{^Conimence  as  in  No.  204.,  ante.) 

For  that  whereas  the  plaintiff  on,  etc.,  at,  etc.,  was  and 
still  is  possessed  of  a  certain  tract  of  land,  to-wit:  {Here  de- 
scribe) on    which    said   land    there  was    then stacks   of 

wheat  in  the  sheaf; stacks  of  barley  in  the  sheaf;  

stacks  of  oats  in  the  sheaf,  and stacks  of  hay,  the  prop- 
erty of  the  plaintiff;  and  around  which  land  there  was  a  rail 
fence,  of  all  which  the  defendant  then  and  there  well  knew  ; 
yet  the  defendant,  at  the  said  time  and  place,  wittingly, 
knowingly  and  intentionally  kindled  a  fire  on  the  prairie  near 
to  and  adjoining  the  said  premises  of  the  plaintiff,  and  so  negli- 
gently and  carelessly  watched  and  tended  the  said  fire,  that 
the  same  communicated  with  and  extended  into  and  upon 
the  said  premises  of  the  plaintiff,  and  consumed  the  said 
described  stacks  of  grain  and  hay,  and  the  said  fence,  of  great 

■value,  to-wit,  of  the  value  of dollars,  to  the    damage   of 

the  plaintiff  of dollars,  and  therefore  he  brings  suit,  etc. 

E.  F.,  Att'y  for  Pl'ff 

{g)  2  Scam.  434. 
S7 


5/ 


Sg6  MISCELLANEOUS  EORMS. 

Declaration  for  deceit  in  sale  of  mattress   infected  with  vermin. 

Ay?.  400.     Declaration  for  deceit  in  sale  of  a  mattress,  infected 
with  vermin,  {/i) 

{^Commence  as  in  No.  20^,  ante.) 

For  that    whereas   the  plaintiff,   upon,    etc.,   at,   etc.,   bar- 
gained  with  the  defendant  for   the   purchase  of  a  fine  wool 

mattress  for  the  sum  of dollars,  and  for  which  sum.    the 

defendant  undertook  to  make,  sell  and  deliver  to  the  plaint- 
iff a  matiress  of  clean  fine  wool;  that  the  defendant  did  after- 
wards, to-wit,  on,  etc.,  deliver  to  the  plaintiff  a  mattresswhich 
he  falsely  and  deceitfully  represented  to  be  of  the  quality 
aforesaid.  The  said  mattress  so  delivered  being  covered 
with  cloth,  so  that  the  plaintiff  could  not  see  what  was  con- 
tained within  it;  that  the  plaintiff  then  and  there  believing 
and  relying  upon  such  false,  fraudulent  and  deceitful  repre- 
sentations of  the  defendant,  accepted  said  mattress  from  him 

and  paid  the  defendant  the  said  sum  of dollars  theretor; 

that  the  plaintiff  then  and  there  believing  it  to  be  clean  and 
wholesome,  and  made  of  clean  wool  as  represented  by  the 
defendant,  used  the  said  mattress  for  a  bed  for  certain  mem- 
bers of  his  family;  and  the  plaintiff  avers  that  after  he  had  so 
used  the  same  for  a  few  months,  he  discovered  that  it  was 
infected  with  moths,  worms  and  other  vermin;  that  the 
plaintiff  then  caused  the  cover  of  said  mattress  to  be  ripped 
off,  and  thereby  discovered  that  said  mattress  was  not  made 
of  clean  fine  wool,  as  so  falsely  and  deceitfully  represented, 
but  of  a  mixture  of  dirt  and  filthy  rags  of  all  colors  and  kinds, 
and  was  totally  unfit  for  a  bed,  or  to  be  used  in  the  house  of 
any  person  ;  and  the  plaintiff  further  avers,  that  the  defendant 
by  the  means  of  the  premises,  falsely,  fraudulently  and  de- 
ceitfully, and  with  the  intent  to  cheat  the  plaintiff  and  to  ob- 
tain his  money  by  false  pretenses,  knowingly,  falsely  and 
fraudulently  deceived  the  plaintiff  on  the  sale  of  the  said  mat- 
tress, as  aforesaid,  and  thereby  the  said  mattress  then  and 
there  not  only  became  and  was  of  no  use  or  value  to  the 
plaintiff,  but  became  and  was  a  nuisance  and  a  breeder  of 
vermin,  and  endangered  the  health  and  lives  of  the  plaintiff 
and  his  family;  and  the  plaintiff  was  thereby  put  to  great  ex- 
pense to  clear  said  moths  and  vermin  out  of  his  house,  and 
was  greatly  annoyed,  and  his  furniture  was  thereby  greatly 
injured;   of  all  and   which  the  defendant  was  then  and  there 

{h)  19  Bradw.  615, 


MISCELLANEOUS  FORMS.  897 

In  trespass — Declaration. 

well  knowing;  and  so  the  plaintiff  avers   that  the   defendant 
falsely  deceived  and  defrauded  the  plaintifl';  to  his  damage  of 

dollars,  and  therefore  he  brings  his  suit,  etc. 

E.  F.,  Att'y  for  Pl'ff. 


In  Trespass — Dcdarat'w7i. 
No.  ^o\.     Declaration  for  sliootuig  plaintiff' s  dog. 

In  the Court, 

State  of  Irxixois,  "| 


Term,  A.  D.  18- 


County  of / 

A.  B.,  the  plaintiff,  by  E.  F.,  his  attorney,  complains  of  C. 
D.,  defendant,  of  a  plea  of  trespass  ;  for  that  the  defendant  on, 
etc.,  at,  etc.,  with  force  and  arms,  etc.,  shot  off  and  dis- 
charged a  certain  gun,  then  and  there  loaded  with  gun-pow- 
der, and  shot  at  and  against  a  certain  dog  of  the  plaintiff  of 

great  value,  to-wit,  of  the  value  of dollars,  and  thereby  and 

therewith  then  and  there  so  greatly  shot,  hurt  and  wounded 
the  said  dog,  that  by  reason  thereof  the  said  dog,  being  of 
the  value  aforesaid,  afterwards,  to-wit.  on  the  day  and  year 
aforesaid,  died,  to-wit,  at,  etc.,  aforesaid  ;  and  other  wrongs 
to  the  plaintiff  then  and  there  did,  against  the  peace   of  the 

people  of  this  State,  and  to  the  damage  of  the  plaintiff  of 

dollars;  and  therefore  he  brings  suit,  etc. 

By  E.  F.,  Att'y  for  Pl'ff. 


I 
ft 


GENERAL    INDEX. 


(See  Index  to  Forms,  Post.) 

ABATEMENT— 

PijEas  to  Jurisdiction  and  in  Abatement 144 

Order  of  pleading 144 

When  dilatory  pleas  must  be  filed 144 

What  may  be  pleaded  in 145 

Requisites  of  plea  in 148 

Judgment,  etc 149 

(For  Forms  of  Pleas  in,  see  Index  to  Forms — ABATEMENT, 
Forms  of  Pleas  in,  Replications,  Demurrer,  etc.,  post.) 
ACCOUNT— Action  of. 

Where  the  action  lies,  etc 276 

Demand  to  account 279 

Time  for  which  it  is  to  be  taken 280 

(For  Forms  of  Declarations,  Pleas,  etc.,  see  Index  to  Forms, 

i)os^  ACCOUNT— "Action  OF.) 
(See  observations  following  each  form.) 
ACCOUNT  STATED— 

Form  of  count  for 66 

Form  of  plea  of,  etc 221 

ACCORD  AND  SATISFACTION- 

Form  of  plea  of 218 

Same 'J21 

Form  of  replication  to  pleas  of 219 

Observations  upon,  etc 218 

ADMINISTRATOR— 

Form  of  declaration  by,  in  assumpsit 79 

Same  on  note 89 

Form  of  declaration  on  bond  of 353 

Form  of  declaration  by,  against  R.  R.  Co.  for  causing  death  of 

testator 437 

ADMINISTRATRIX- 

Form  of  declaration  by,  etc 80 

AFFIDAVITS— 

(For  Forms  of,  see  Index  to  Forms,  post,  Affid.wits,  Forms 

of.) 
AGREED  CASES-QUESTIONS  OF  LAW  CERTIFIED- 

Certified  to  Supreme  or  Appellate  Courts 846 

(899) 


900  GENEEAL  INDEX. 

Amendments — Arbitration  and  Award. 

AGREED  CASES— QUESTION'S  OF  LAW  CERTIFIED— Continued. 

Statutory  provisions,  relating  to 8-J6 

Must  not  be  feigned 846 

Must  first  be  decided  in  trial  court 846 

Questions  of  latv  certified ...: 847 

Judges  may  certify 847 

Statutory  provisions,  etc 847 

^       Exceptions  to 847 

What  certificate  must  contain 847 

Rule  of  Supreme  Court  relating  to 855 

{For   Various    Forms  relatiiig  to,  see   Indkx   to  Fokms,  post, 
AGREED  CASES— Forms  in.) 

AMENDMENTS— 

Reform  in  the  practice  by * 764 

Amendments  generally 765 

Terms  upon  which  allowed 7G6 

Of  execu  ions,  when  allowed 7G6 

Of  returns  of  process,  etc 766 

Of  records,  etc 767 

Before  final  judgment,  etc ' 767 

Of  pleadings  in  vacation,  etc 768 

Of  process  out  of  term,  etc 768 

Of  errors  in  fact  after  judgment 769 

Writ  of  coram  nobis  abolished 769 

Other  statutory  provisions 769 

ANSWERS— 

Form  of  answer  of  garnishee 040 

Form  of  answer  to  petition  for  mandamus 682 

APPEAL  BOND— 

Form  of  declaration  on 335 

ARBITRATION  AND  AWARD— 

Nature  of  the  proceeding,  etc 857 

Statutory  Submission 857 

In  Suits  Pending 857 

Proceedings  by  arbitrators 858 

Oath  of  arbitrators 858 

Sithjjcpnas  for  witnesses 860 

Swearing  witnesses 860 

The  hearing,  etc 860 

The  award,  publication  of 861 

Prima  facie  award  is  considered  valid 862 

Either  party  not  complying 862 

Filing  of  award  in  court 862 

Judgment  upon  award 863 

Enforcement  of  award 863 

Award,  when  set  aside 8G4 


GE^-EEAL  INDEX.  901 


Arrest  of  Judgment — Assumpsit. 


ARBITRATION  AND  AWARD-Coiitinucd. 

For  fraud  or  mistake 864 

Award  prepared  by  attorney  for  oue  of  the  parties 8G7 

Signing  of  award , 867 

When  court  may  correct  award 868 

When  motion  to  set  aside,  or  modify  niu>t  be  made 868 

Error  and  appeals 869 

Compensation  of  arbitrators 869 

Fees  of  witnesses,  etc 869 

Arbitrators  may  be  compelled  to  act 869 

Record  of  reference,  etc 870 

In  Controversies  not  in  Suit 870 

Statutory  provisions  relating  to 870 

Construction  of  the  statute 870 

Proceedings  under  section  16 871 

Award  under  section  16 871 

Common  Law  Submissions 871 

Differ  from  statutory  submissions 871 

How  submitted 872 

Revocation  of  submission 873 

Who  may  be  arbitrator , 874 

General  powers  and  duties  of  arbitral ors 874 

Recommitting  an  award 875 

Form  of  plea  of 223 

Form  of  replication  to  plea 224 

Same,  denying  award 889 . 

Same,  to  plea  of  award 889 

Form,  rejoinder  to  replication  to  a  plea  of  award 891 

(For  Forms  relaf'uip  fo  arhifi'iifion  and   aimrd,  see  Indi-.x  to 
Forms,  posf,  ARBITRATION  AND  AWARD.) 
ARREST  OF  JUDGMENT— 

When  it  will  be  arrested 811 

When  it  will  not  be 811 

Time   and  manner  of  moving  in  arrest 813 

ASSAULT,  ETC.— 

(See  Trespass,  and  forms  relating  to,  Index  to   Forms,  post, 
TRESPASS— ACTION  OF.) 
ASSUMPSIT— Action  of. 

Nature  of  the  action,  etc 57 

Where  it  lies,  etc .58 

Consideration  of  promises 60 

Privity  of  contract 61 

Commencement  of  the  action 61 

Declarations  in 61 

Listrumonts  or  account  sued  on,  to  be  filed,  etc 63 

Continuance  for  want  of 63 


902  GENERAL  INDEX. 

Attachment. 

ASSUMPSIT— Continued. 

Dismissal  at  second  term 64 

Waiver  of ,  etc 64 

Defenses  to  the  action,  etc 140 

Motion  to  quash  or  dismiss 140 

How  made 140 

When  to  be  ready,  etc 141 

Pleas  to  jurisdiction,  and  in  abatement 144 

At  what  time  to  be  pleaded 144 

What  may  be  pleaded  in , 145 

Premature  action,  etc .' 145 

Amendment  to  cure  matters  of  abatement 146 

Death  of  sole  plaintiff  or  defendant 146 

Death  of  sole  plaintiff 147 

Of  sole  defendant 147 

Part  of  parties 148 

Of  all  on  one  side 148 

When  pleas  to  be  verified 148 

Requisite  of  pleas  in 149 

Judgments  upon 149 

Pleas  in  bar 163 

A^iBdavit  of  merits 166 

General  issue  with  notice  of  special  matter 167 

Special  pleas  in  bar,  replications,  etc 170 

Pleas,  etc.,  as  to  part,  etc 174 

Collateral  undertakings,  under  plea  of  statute  of  frauds,  etc.. .  189 

Diligence  required  by  maker  of  note,  on  charge  of  fraud 195 

Diligence  required  by  assignee  of  note  to  hold  maker 196 

Want  of  consideration  of  note,  etc 243 

Pleas  denying  joint  liability,  etc 258 

Demurreks 265 

Generally 266 

(See  observations  following  each  form.) 

{For  Forms  of  Declarations,  Pleas  in  Abatement,  Replications, 
Pleas    in   Bar,  Eejoinders,    Demurrers    and    other  Forms 
connected   n-ith    the    Action,    see  Index  to  Forms  ,    2;o&^ 
ASSUMPSIT,  Action  of.) 
ATTACHMENT— Proceedings  in. 

Nature  of  proceedings,  etc 618 

Where  it  lies,  etc 619 

Commencement  of  proceedings  in 620 

By  affidavit,  etc 620 

Where  suit  to  be  brought 622 

Plaintiff  to  give  bond 622 

Against  joint  debtors 623 

Execution  of  the  writ,  etc 624 


r 


GEXERAL  INDEX.  903 

Attachment  Bond. 

ATTACHMENT— Continued. 

The  declaration,  etc 625 

Garnishees,  etc 625 

Notice  by  publication 626 

Defenses  to  the  proceiding 627 

Plea  in  abatement  traversing afEdnvit 627 

Practice  and  pleadings  in '. . .  628 

Forthcoming  bonds,  etc 629 

Bond,  etc.,  for  return  of  property 629 

Liability  of  sheriff  for  failing  to  take  and  return  bon  1 6^:0 

Insufficient  bond,  etc 630 

Suit  on  bond 631 

Feeding  animals  attached 631 

Sale  of  perishable  property 631 

Tnteryleader  by  third  jMrfij 632 

Attachment  in  aid  of  stiit  pending 633 

Judgment  where  there  is  no  personal  ^^or\  ice 636 

Sale  of  property  on  execution 636 

Division  of  proceeds,  etc 636 

By  the  sheriff,  etc 637 

Proceeds  brought  into  court,  etc 637 

(See  Gakxishment,  j^osf.) 

Attachsient  of  Water  Ckakts , 650 

Lien  upon,  etc 650 

For  what  lien  is  given 650 

Lien  on  goods  for  freight 651 

Limitation  of  proceedings 651 

Petition  to  enforce  lien 651 

Bond  to  be  filed,  etc 653 

Notice  by  publication 653 

Intervening  creditors 653 

Bonding  vessel 654 

.               Appraisement — restitution — sale,  etc 654 

Answer,  etc 654 

Affidavit  of  merits,  etc 654 

Default,  etc 654 

Judgments — decree  of  sale 654a 

Amendments,  etc 6" 4a 

Distribution,  etc 654a 

(See  observations  foUotring  each  jyrecedent.) 

(For  Forms  in  Attachment,  and  Attachment  of  Water  Crafts, 
see    ATTACHMENT,    Proceedings   in,    etc.;    Index   to 
Forms,  post.) 
ATTACHMENT  BOND— 

Form  of  declaration  upon 358 


904 


GENEEAL  INDEX. 


Attorneys  and  Counselors  at  i/dw — B.iil  in  Civil  Cases. 


ATTORNEYS  AXD  COUNSELORS  AT  LAW— 

Form  of  count  for  services , 67 

Form  of  declaration  against,  for  negligence,  etc 460 

Nature  of  the  office,  etc 732 

How  admitted 732 

Qualifications 733 

■  AlitJwrify  of. 734 

It  cannot  be  delegated 737 

Retainer,  etc 737 

Agreements  made  by,  for  clients,  etc 737 

Admissions  by,  etc 738 

Termination  of  employment 738 

Duties  and  liabilities 739 

Ought  not  to  be  witness  for  client,  etc _ 739 

Acting  in  another  capacity 740 

Cannot  act  on  opposite  sides 740 

Liability  to  third  persons 741 

Dealings  between  attorney  and  client 741 

Assigned  by  court  to  defend  prisoners 742 

Rights  and  Privileges 742 

Privileged  communications 742 

Fees,  etc 743 

Lien  of ,  etc 744 

AVOWRY— 

Form  of,  for  rent  in  replevin, 538 

Form  of  plea  to.  denying  demise 539 

Form,  same,  no  rent  in  arrear 540 

AWARD — (See  Arbitration  and  Award.) 

Form  of  declaration  on 326 

Form  of  plea  of  no  award 400 

Form  of  replication  to  plea  of  aAvard 889 

Form  of  replication  to  plea  of  arbitrament,  denying  award. . .  889 

BAIL  IN  CIVIL  CASES— 

When  required,  etc.... , 43 

In  actions  ex  contractu 43 

In  actions  sounding  merely  in  damages 44 

Plaintiff  to  give  bond 44 

B  il  bond,  etc 44 

Who  may  become  bail 45 

Sheriff  may  administer  oath,  etc 45 

Insufficient  bail,  etc 45 

Discharge  or  reduction  of  bail 46 

Capias  to  stand  as  a  summons,  etc 46 

Surrender  of  defendant,  etc 46 

Record  of 47 

In  vacation 47 


IP  . 

GENERAL  INDEX.  905 


»■ 


Bailees — Case. 


BAIL  IN  CIVIL  CASES— Continued. 

When  bail  may  be  discharged 47 

After  judgment,  effect  ot 47 

New  bail  may  be  taken 48 

Bail  may  arrest  principal 48 

Prosecution  of  bail • 48 

Suit  on  bail  bond,  when,  etc 48 

Bail  may  obtain  judgment  against  principal,  when 49 

Death  of  principal,  etc 49 

When  bail  discharged,  etc 50 

Bankruptcy,  etc.,  of  principal 50 

Discharge  of  bail  in  discretion  of  court 54 

Effect  of  surrender  of  principal  after  return  day 55 

Suits  on  bail  bond,  how  brought 55 

(For  Forms  in  Bail  in  Civil  Cases,  see  Indkx  to  Fouxis,  post, 
BAIL  IN  CIVIL  CASES.) 

BAILEES— 

Form  of  declaration  against  hirer  of  ho''se,  etc 122 

Same,  overloading,  etc 458 

BANK  CHECK— 

Form  of  declaration  on 104 

BILLS  OF  EXCHANGE— 

(See  Forms  of  Declarations  upon,  Index  to  For.u^,  x>ost,  AS- 
SUMPSIT, Action  of.) 

BILLS  OF  EXCEPTIONS— 

Objections  to  decisions  of  court  preserved  by,  etc 829 

^Vhen  exceptions  must  be  taken 830 

Signing,  etc.,  of  bill  of,  etc 830 

What  the  bill  should  contain 833 

When  necessary >33 

Form  of,  to  decision  of  the  court,  on  evidi'uce,  etc 836 

Forin  of,  on  refusal  to  grant  a  continuance 838 

BOARD  AND  LODGING— 

Form  of  count  for,  in  assump.sit 66 

CAPIAS  AD  RESPONDENDUM— 

In  what  cases  may  issue 43 

Forms  of  affidavits  for 51 

Observations  on 52 

May  stand  as  a  summons,  when,  etc 46 

Form  of  order  for 53 

Form  of  plaintift"'s  bond,  etc 53 

Form  of  defendant's  bond,  etc 54 

In  action  against  drover,  etc 376 

CARRIERS— (See  Common  Cauuieus.) 

CASE— Action  on  thr. 

2sature  of  the  action,  etc 415 


906  GENEKAL  INDEX. 

Certiorari— Commencement   of  an  Action. 

CASE— Continued. 

Wliere  the  action  lies,  etc 416 

Commencement  of  the  action 421 

Form  of  prceci}}e  for  process 422 

For  Slander  and  Libel 466 

What  amounts  to  slander,  etc 466 

"Where  the  action  lies  for,  etc 466 

Defenses  to  the  Action  op  Cask 488 

Pleas  in  bar,  etc 489 

General  issue  in  action  tor  slander  and  libjl 490 

Special  pleas  in  actions  for  slander  and  libal 492 

(See  ohserratlonfi  following  each  ijrecedenf.) 
{For  Forms  of  Declarations,   Pleas,  etc.,  see  Index  to  Forms, 
po.9^CASE,  ACl'ION  ON  THE.) 
CERTJORARl— 

The  Common  Law  Writ 703 

Its  nature  and  purposes 703 

The  Statutory  Writ 705 

Its  nature  and  purposes 705 

The  Petition,  etc 706 

Requisites  of,  etc 706 

Form  of  petition  for,  etc ■ 709 

(See  observations  following  form,  etc.) 
CHANGE  OF  VENUE— 

In  civil  cases 749 

When  same  may  he  had,  etc 749 

Interest  or  prejudice  of  j  ad <:re 749 

Prejudice,  etc.,  of  inhabitants 749 

Notice  of  application,  etc 749 

The  petition  for,  etc 750 

When  application  to  be  made 751 

By  whom  made 752 

By  part  of  plaintiffs  or  defendants,  etc 752 

Order  granting:  in  vacation 752 

Terms  and  conditions  of,  e,c 753 

Costs  of  the  change 753 

When  to  be  paid 753 

Transcript,  papers,  etc 753 

To  tchat  court  sent,  etc 754 

Docket ing  cause,  etc 754 

Irregularities  waived,  etc 754 

(For  Forms  of  Notice,  Petitions,  etc.,  see  Index  to  Forms, 
post,  CHANGE  OF  VENUE.) 
COGNOVIT— (See  Confession  op  Judgment.) 
COMMENCEMENT  OF  AN  ACTION— 

The  PrcPfipe  for  process 38 

(See  SECURITY  FOR  COSTS-BAIL  IN  CIVIL  CASES,  ETC.) 


I 


GENEEAL  DsDEX.  907 

Common    Carrier — Covenant. 

COMMON"  CARRIER— 

Form  of  declaration  for  loss  of  goods,  etc 125 

Duties  and  liabilities  of,  etc 126 

Form,  same,  against  captain  of  ship,  etc 127 

Form  against  R.  R.  Co.  for  not  deli  ering  good-,  etc 461 

CONFESSION  OF  JUDGxMENT— 

Nature  and  efFect  of 822 

May  be  entered  in  vacation 822 

Mode  of  obtaining,  etc 823 

Form  of  warrant  of  attorney 823 

Form,  of  cognovit 824 

Powers  of  courts  over  judgments  by,  etc 825 

CONSIDERATION— 

Must  be  on  promises 60 

Want  of,  for  given  note 244 

Form  of  plea  of  total  failure  ot,  for  given  note 246 

Form,  same,  etc 247 

Form,  ill  suit  by  assignee,  etc 248 

Form,  partial  failure  of 251 

Form,  on  note  given  for  fees,  etc 887 

Form  of,  in  action  of  debt 397 

(See  observations  foUou-iiig  2»'ecedents.) 

CONSTABLE— (See  Sheriffs.) 

Form  of  declaration  for  seizing,  etc.,  property  exempt,  etc. . . .  575 

Form  of  plea  justifying  arrest,  etc 591 

Form,  same,  etc 592 

continuances- 
How  and  when  applied  for 755 

For  absence  of  witnesses,  etc 755 

Form  of  affidavit  for,  etc 756 

By  reason  of  amendments 760 

For  want  of  declaration,  etc 7C0 

Defendant  in  military  service 761 

Party  or  counsel  in  legislature 762 

On  remanding  cause  from  supreme  or  appellate  courts 762 

Terms  may  be  imposed,  etc 762 

COSTS— (See  Secukitv  for  Costs.) 

COVENANT— Action  op. 

Where  the  action  lies,  etc 289 

Covenants  in  deeds,  etc.,  breaches  of,  etc 291 

Commencement  of  the  action 294 

Prcecipe  for  summons,  etc 295 

Declarations  in  covenant 295 

Defenses  to  the  action,  etc 306 

Pleas  in  abatement 306 

Pleas  in  bar 306 


908  GENERAL  INDEX. 

Crinnniil  Conversation — Demurrer. 

COVENANT— Continued. 

Pleas  as  to  part,  etc 307 

(See  ohsei-raiioiisfolloiriiiff  each,  pyccedimf.) 
{For  Forms  of  Declarations,  Pleas,  etc.,  see  Index  to  Forms, 
post,  in  COVENANT— Action  of.) 
CRIMINAL  CONVERSATION— 

Form  of  declaration  for,  in  case 451 

Form,  same,  in  trespass 571 

(See  observations  folloir'uig  each  precedent.) 
DE  BONIS  ASPORTATIS— 

Form  of  common  count,  in  trespass 572 

DE  INJURIA— 

Form  of  repl  ication  of.  in  case 495 

For  V,  same,  in  trespass 635 

DEBT— Action  op. 

Where  the  action  lies,  etc 311 

Penal  actions  under  statute.  . 315 

Commencement  of  the  action <J16 

Form,  prmcipe  for  summons 817 

Declarations  in 317 

Profert,  when  necessary 333 

On  penal  bonds,  statutory,  etc 334 

Judff ments  in  actions  on  penal  bjn Js 334 

Defenses  to  the  action 383 

Pleas  in  abatement 384 

Pleas  in  bar 884 

Special  rion  est  factum 389 

Demurrer  after  craving  oyer 403 

(See  observations  follou-ing  each  precedent .) 
{For  Forms  of  Declarations,  Pleas,  etc.,  see   Index  to  Foums, 
2Mst,  DEBT— Action  op.) 
DECEIT— 

Form,  dec'.aration  for,  in  warranty  of  horse 455 

Form,  same,  in  sale  of  wool,  etc 456 

Form,  in  sale  of  mattress  infected  with  vermin,  etc 896 

DECLARATIONS- (See  Index  to  Forms,  2yost.) 
DEFAULT— 

Where  no  affidavit  of  m'-rits  is  filed  with  plea,  etc 56 

When  set  aside 809 

Judgment  by 815 

Assessment  of  damages  upon,  etc 815 

DEMURRER— 

General  observations  on 266 

Judgment  on ,  etc 266 

After  craving  oyer 403 

(For  Forms  of  Demurrers,  see  Index  to  Fokji',  ^^ios^,  ASSUMP- 
SIT, ACTION  OF,  ETC.) 


I 

I 


GEXEEAL  INDEX.  9C9 

Depositions — Ejectment. 

DEPOSITIONS— 

When  they  may  he  taken  ("see  Evidence) 775 

Witnesses  residing  in  another  co'jnt\%  etc 775 

Form  of  affidavit  to  be  filed,  etc 775 

Form  of  notice  to  be  given,  etc 776 

Witnesses  residing  in  State,  non-resident  witnesses,  etc 778 

Form  of  notice  and  interrogatories 779 

Non-resident  witnesses  on  oral  interrogatories,  etc 780 

Notice  hy  mail,  etc 781 

Instructions  for  taking,  etc 781 

Form  of  caption  to,  etc 781 

Form  of  certificate,  etc 782 

(See  ohserrations  foJloici)ig  each  form.) 

DISTRESS  FOR  RENT— 

Nature  of ,  etc 405 

Landlord's  lien,  etc 405 

What  may  be  distrained 406 

Form  of  distress  warrant 408 

Return  of,  inventory 409 

Form  of  inventory,  etc 409 

Summons  to  be  issued 409 

Notice  to  non-residents,  etc 409 

Form  of  affidavit  for  publ ication 410 

Judorment  for  plaintiff 412 

Where  there  is  no  service 412 

Judgment  for  defendant 412 

Release  of  property  distrained,  etc 413 

Perishable  property 413 

Rights  against  sub-lessees 414 

Proceedings,  pleadings,  etc 410 

Defenses  to. 

Defendant  may  plead  set-off,  etc 411 

DROVER— 

Form  of  declaration  against,  in  debt,  sta'utory 375 

Observations  upon 376 

DURESS— 

Form  of  plea  of 395 

Form  of  replication  to  plea 396 

Observations  on 395 

EJECTMENT— Action  ok. 

Nature  of  the  action,  etc 604 

When  the  action  lies,  etc 604 

Who  may  maintain,  etc 608 

Commencement  of  the  action 609 

Preecipe  for  summons 610 

Declaialioiis  in 610 


m 


910  GENERAL  INDEX. 

Evidence — Garnishment. 

EJECTMENT— Continued. 

Defensks  to  the  Action 613 

Claim  op  Mesne  Profits 6  4 

Defenses  to  claim  for  mesne  profits C15 

(See  observations  folloiciiig  each  form.) 

(For  Forms  of  Declarations,  Suggestion  o'' Mesne  Profits,  and 
Pleas,  etc.,  see  Index  to  Foiims,  post,   EJECTMENT,  Ac- 
tion of.) 
EVIDENCE— (See  Depositions^.) 

^     Mode  of  producing,  etc ''71 

Documentary,  etc 771 

Form  of  notice  to  produce  on  trial,  etc 772 

Oral  testimony  of  tcitnesses,  etc 773 

Attendance  of  witnesses,  how  procured 773 

Form,  prcecipe  for  subpoena  for  witnesses .- 773 

Tender  of  fees,  when  required 774 

Habeas  corpus  ad  testificandum 722 

EXCEPT l(3No— (See  Bills  of  Exceptions.) 
EXECUTOR- 

Form  of  common  count,  on  promise  to  testator,  with  proferfc 

of  letters,  etc 77 

Form,  same,  on  note,  etc 89 

Form,  in  trover,  for  a  conversion  in  lifetime  of  testator 5j9 

Form  of  declaration  by  indorsee,  on  note  indorsed  by   ex,'ca- 

tor,  etc 86 

(See  observations  following  each  form. ) 
EXECUTRIX— (See  Executor.) 

Form,  declaration  by,  etc.,  on  promise  to  testator,  etc 79 

FALSE  IMPRISONMENT— 

Forms  of  declarations  for,  etc 670 

Observations  upon 571 

FORMER  CONVICTION— 

Form  of  plea  of.  etc.,  in  debt,  on  statute 402 

FORNICATION— (See  Slander,  etc.) 

Form  of  declaration  in  slander  for  words  chargin;? 478 

FRAUD— (See   Assumpsit,  Action  op,  Pleas,  etc.,  in;  Case,  Action 

of,  for  declarations  in,  for  deceit,  etc.) 
FRAUDS,  STATUTE  OF— (See  Statute  of  Fr.\uds.) 
GAMBLING  CONTRACTS— 

Form  of  plea  that  note  was  given  for 252 

Same,  gambling  in  options 255 

GARNISHEES— (See  Garnishment,  A.ttacument,  etc.) 
GARNISHMENT— 

In  attachment  proceedings 6-5 

Form  of  affidavit  for,  on  judgment,  etc 638 

Service  and  return  of  summons  in 638 


GENERAL  INDEX.  911 

General  Issue — Indebitatus   Counts. 

GARXISHMEXT— Continued. 

Interrogatories  and  answers,  etc 6-9 

Form  of  interrogatories  to  garnishee 640 

Form  of  answer  of  garnishee 640 

Plaintiff  may  contest  answer 641 

Garnishee  may  deduct  demands,  etc 642 

Other  claimants  to  effects  in  hands  of  garnishee 643 

Garnishee  may  contest  proceedings,  etc 644 

What  is  subject  to  garnishment 644 

Non-resident  garnishees 645 

Judgment 646 

Conditional  judgment 646 

Final  judgment 646 

Death  of  garnishee,  etc 647 

Effect  of  judgment  against  garnishee 647 

AVhen  debt  of  garnishee  is  not  due,  etc 647 

Goods,  etc.,  in  hands  of  garnishee  to  be  given  up,  etc .•  648 

Costs  in  proceedings  against  garnishee 650 

GENERAL  ISSUE— (See  defenses  to  the  various  actions.) 

GOODS  SOLD  --.ND  DELIVERED,  ETC.— 

Form  of  count  on 65 

Form,  same,  bargained  and  sold 65 

GUARANTOR— 

Form  of  declaration  against  on  note 100 

Observations  on 101 

GUARDIAN— 

Form  of  declaration  on  bond  of,  etc 348 

Form,  same,  etc 351 

Observations  on 351 

HABEAS  CORPUS— 

History  of  the  remedy,  etc 712 

When  writ  will  be  granted,  e^c 715 

By  whom  application  for  may  be  made 717 

To  whom  made,  etc 717 

Petition  for,  etc 718 

Allowance  and  issuing  of  writ  of 723 

Service  of  the  writ,  etc 724 

Expense  of ,  etc 724 

Return  of,  etc 725 

Examination,  etc ''26 

Denial  of  return,  etc 727 

(See  observations  following  each  form.) 

(For   Forms  in  proceedings  6//  Habeas  Corpus,    see   Index  to 
Forms,  iJo.'?^  HABEAS  CORPUS.) 

INDEBITATUS  COUNTS— (See  Forms  of  iu  Index  to  Fou-ms,  in 
Assumpsit  and  Debt.) 
58 


912  GENERAL.  INDEX. 

Injunction  Bond — Judgment  Recovered. 

INJUNCTION  BOND— 

Form  of  declaration  on 362 

Observations  on 363 

INSURANCE  POLICIES— 

Eorm  of  declaration  on,  in  assumpsit 134 

Form,  same,  etc 134 

Form,  same,  in  covenant 302 

(See  ohserrafions  foUotchig  each  precedent.) 
INTEREST— (See  Usury.) 

Form  of  common  count  for,  in  assumpsit 66 

INTERPLEADER— 

By  third  party  in  attachment,  etc 632 

Form  of,  by  third  party  claiming  property 633 

JOINDER  OF  COUNTS— 

In  different  kinds  of  trespass  allowed 565 

Replevin  and  trover  may  be  joined,  etc 527 

Allowed  in  detinue  and  debt 412 

Al  lowed  in  trover  and  case 508 

JOINT  LIABILITY— 

Form  of  plea,  by  one  defendant,  denying 258 

Form,  by  defendants,  denying 258 

Observations  on 258 

JUDGMENTS— (See  Confession  of  Judgment.) 

^(ifure  and  effect  of,  etc 814 

Interlocutory  or  final,  etc 814 

By  default,  etc 815 

Of  non-suit,  etc 818 

Effect  of,  etc 818 

On  demurrer 819 

On  verdict 819 

Form  of  judgment,  etc 819 

Forms  of  declarations  on. 

On  judgment  in  same  court 828 

Same,  of  another  State 329 

Same,  of  J.  P.  of  another  State 329 

Motion  in  arrest  of 811 

(See  observations foUotving  each  form .) 

Form,  scire  facias,  to  make  ptirty  to 656 

Form,  same,  to  revive,  etc 658 

Observations  on,  etc 657 

JUDGMENT  RECOVERED— 

Form  of  plea  of. 224 

Form  of  replication  to  plea 225 

Form,  same,  etc 888 

(See  Arrest  of  Judgments.) 


r 


GEXERAL  INDEX.  913 

Jurisdiction — Liberum  Tenementum. 

JURISDICTION— 

Form  of  plea  to  jurisdiction  of  the  court 150 

Observations  on 151 

JURY— 

Who  are  competent  jurors 786 

Who  are  exempt 786 

Challenge  of  Juroks 787 

To  the  array 787 

To  the  poll 788 

For  cause 788 

Peremptorj',  etc 790 

Polling  the  jurj',  etc 791 

JUSTICE  OF  THE  PEACE— 

Form  of  plea  by,  justifying  issuing  of  capias,  etc 590 

Certiorari  to,  etc 705 

•    Form  of  petition  for  certiorari  to,  etc 709 

JUSTIFICATION— 

Forms  of  pleas  of  replicafious,  etc. 

In  slander,  of  words  imputing  perjur}' 494 

Replication,  de  injuria  to  plea 4i  5 

In  slander,  words  imputing  larceny 495 

By  sheriff,  of  seizure  under  execution 53 1 

By  same,  in  trespass,  etc 595 

Replication  to 597 

By  school  master  of  battery,  etc 589 

By  a  J.  P.  for  issuing  a  capias  ad  res 590 

By  constable  for  arrest  without  process,  on  suspicion,  etc 591 

Same,  another  form 592 

Of  arrest  by  private  person,  etc 594 

(See  observations  following  each  form,   also.  Case,    Tkespass 
and  Replevin.) 
LANDLORD  AND  TENANT— (See  Distress  for  Rent.) 
Forms  of  pleadings  relating  to. 
Declaration,  landlord  vs.  tenant,  for    double  rent  under  the 

statute,  etc 879 

Avowry  or  cognizance  for  rent 538 

Plea  to,  traverse  of  demise 539 

Same,  no  rent  in  arrear 540 

Declar  tion  on  covenants,  to  pay  rent 299 

Same,  for  not  cultivating,  etc.,  in  husbandlike  manner 11 G 

Same,  for  not  repairing,  etc 117 

LTBEL— (See  Slander  and  Libel.)  CtL^^LX^     -^*  ^(pCf 

LIBERUM  TENEMENTUM— 

Form  of  plea  of fiOO 

Observations  on 600 

Form  of  replication  to  plea  of 602 


9U 


GENERAL  INDEX. 


License — Mesne  Profits. 


LI BERUM  TENEMENTUM— Continued. 

Form,  new  assignment  to  plea  of 602 

Observations  on 603 

LICENSE— 

Form  of  plea  of,  in  trespass  to  real  estate 598 

Form  of  replication  to  plea  of 599 

Observations  on  plea  of 599 

Of  attorneys,  etc 732 

LIEN— 

Of  attorneys,  etc 744 

Form  of  plea  of,  in  replevin 536 

Observations  on 537 

Form  of  plea  that  property  was  held  as  a  pledge 538 

Limitations— Statute  of. 

Form  of  plea  of 175 

Form  of  replication  denying  plea  of t . .  176 

Same,  that  defendant  was  out  of  State,  etc 177 

Form  of  rejoinder  that  action  was  commenced  within,  etc 177 

Observations  on 175 

MALICIOUS  PROSECUTION— 

Form  of  declaration  for 446 

Observations  on 448 

MANDAMUS— 

Nature  and  purpose  of  the  irrif 671 

In  what  cases  awarded 672 

Jurisdiction  of  courts  in,  etc 674 

The  relator,  etc 675 

Demand  necessary,  ete 675 

Petition  for,  etc 675 

Requisites  of 675 

Su  mmons  to  issue,  etc , 676 

Default,  answer,  etc 676 

Time  to  plead,  etc 676 

Pleadings,  ete 676 

Judgment,  etc 677 

False  return,  damages,  etc 677 

Making  new  defendants,  etc 677 

Death  of  defendant,  etc 677 

Form  of  petition  for  writ 678 

Proceedings  upon 679 

Defenses  to,  etc 681 

Answer  or  pleas 682 

Form  of  answer  to  petition 682 

Form  of  plea  to  petition 683 

(See  ohaervations  follovinrj  each  p)recede)tf.) 
MESNE  PROFITS— (See  Ejectment.) 


GENERAL  INDEX.  915 

Misjoinder — Nil  Debet. 

MISJOINDER-Of  Parties. 

Observations  on ; 159 

Form  of  plea  of 158 

MISNO.AIER— 

Form  of  plea  of 152 

Form  of  replication  to  plea 155 

Observations  on 153 

MOLLTTER  MANUS  IMPOSUIT— (See  Tuespass.) 

MONEY  COUNTS— 

Form  of  common  counts  thereon,  in  assumpsit 66 

Money  had  and  recei  ved 70 

Forms  of  count  in  debt 321 

MORTGAGES— 

Scire  facias  on,  to  foreclose 659 

Forms  of  scire  facias  on 661 

MOTIONS— 

Motions  to  quash  writs,  etc 140 

When  writ  will  be  quashed 141 

To  dismiss  suit,  etc 140 

How  made 140 

When  to  be  made,  etc , .  141 

Motion  for  security  for  costs,  etc 746 

For  leave  to  prosecute  as  a  poor  person 747 

For  a  continuance 755 

For  new  trial 807 

To  set  aside  default 809 

In  arrest  of  judgment 811 

NEW  TRIALS— 

Grounds  for  granting 798 

Misbehavior  of  party  prevailing 798 

Mistakes  or  misconduct  of  jury,  etc 799 

Verdict  against  law  and  evidence 800 

Excessive  or  inadequate  damages 801 

Admitting  improper,  or  refusing  proper  evidence 801 

Error  in  charge  to  jury 802 

Newly  discovered  evidence 804 

Absence  or  mistake  of  witnesses 8,05 

Surprise,  etc 806 

Statutory  provisions 807 

Mode  of  applying  for 808 

Form  of  motion  for 808 

Setting  aside  defaults,  granting  trial  on  m-^rits,  etc 809 

NIL  DEBET— 

Plea  of,  in  debt 384 

Form  of  plea  of ,  etc 384 

Form  of,  and  non  est  factum 387 


916  GENEEAL  INDEX. 

Non  Assumpsit — Non  Suit. 

NIL  DEBET— Continued. 

Form  of,  and  tender 392 

Form  of  replication  of,  to  plea  of  pet-off 205 

(See  ohfierimtions  following  each  form.) 

NON  ASSUMPSIT— 

The  general  issue  in  assumpsit 163 

Form  of  plea  of,  etc 166 

Form  of   plea  of,  to   suggestion  of  claim   for  mesne  profits  in 

ejectment 613 

NON  CEPIT— 

Plea  of.  in  replevin 529 

Form  of  plea,  etc 528 

NON  DAMNIFICATUS— 

Plea  of,  in  debt 399 

Form  of  plea  of 399 

When  proper,  etc 399 

NON  DETINUIT— 

Plea  of,  in  replevin 530 

Form  of  plea  of 530 

NON  EST  FACTUM— 

Plea  of,  etc 306 

Observations  on 306 

Form  of  plea  in  covenant 306 

Form,  same  in  debt 386 

Form  of,  and  nil  debet 387 

Form  of,  after  craving  oyer 888 

Observations  on 3f^8 

Notice  of  special  defense  under 307 

Special  noti  est  factum 389 

Form  of  plea,  bond  delivered  as  an  escrow 390 

Form  of  replication  to  plea  of  release 211 

NON  JOINDER— 

Of  party  as  defendant,  etc 156 

Form  of  plea  of,  in  abatement 156 

Form  of  replication  to  plea  of > 156 

Observations  on 156 

Form  of  plea  of,  party  plaintiff  in  aba'ement 157 

Observations  on 157 

NON  RESIDENTS— 

Plaintiffs  required  to  give  security  for  costs,  etc 39 

Defendants  in  attachment 626 

Garnishees 645 

Defendants  in  distress  for  rent 409 

NON  SUIT— 

Judgment  upon 818 


II 


GENEIIAL  INDEX.  917 

No  Rent  in  Arrear — Performance. 

NO  RENT  IN  ARREAR— 

Form  of  plea  of,  in  debt 400 

Form,  same,  to  avowry,  in  replevin 540 

(See  observations  following  fontis.) 

NOTICE— 

Of  special  matter  under  general  issue 167 

Form  of  notice  of  set-off  under 168 

May  be  given  under  plea  of  nan  est  factum,  in  covenant 307 

Same,  in  debt 387 

Of  application  for  change  of  venue 749 

To  produce  documents  at  trial 771 

For  taking  depositions,  etc 776 

NOT  GUILTY— 

General  issue  in  actions  for  torts  (sae  defenses  in  the  various 

forms  of  actions  in  torts). 

May  be  pleaded  in  action  in  debt,  for  penalty 385 

NUL  TIEL  CORPORATION— 

Plea  of,  etc 260 

Form  of  plea  of 259 

NUL  TIEL  RECORD— 

Form  of  plea  of,  in  debt 393 

Observations  on 393 

Form  of  replication  to 395 

Replication  of,  to  plea  of  judgment  recovered 226 

Form  of  replication  of,  to  a  plea  of  another  action  pending 160 

OYER— 

Demurrer,  after  craving 403 

Form  of  plea  of  non  est  factum,  after  craving 388 

Observations  on 388 

Same 397 

PARTNERS— 

Action  of  account  in  suits  between  (see  Account,  A'  tiox  op). 

Forms  of  declarations  hy,  and  against 73 

By  surviving  partner,  common  counts 73 

Against  surviving  partners 74 

By  partners  vs.  partners  on  note 90 

By  surviving  partners  on  note 87 

PAYMENT— 

Forms  of  plea  of. 

In  assumpsit 215 

Form  of  replication  to 216 

Observations  on 218 

In  covenant o07 

In  debt  on  bond 397 

PERFORMANCE— 

Form  of  2^lcas  in. 

In  covenant 309 


918   .  GENEEAL  INDEX. 

Person — Quantum  Valebant. 

PERFORMANCE— Continued. 

In  debt 398 

Observations  on 399 

PERSON— 

Trespass  for  injuries  to 543 

{For  Forms    of  Declarations  for  injuries   to  the  />erso»,   see 
TRESPASS— Action  op. 
PERSONAL  PROPERTY— (ii'or  Injuries  to,  see  TRESPASS— Action 

OP. 

PETITIONS— 
Forms  of. 

For  certiorari  to  J.  P 709 

For  mandamus 678 

For  change  ot  venue 751 

For  habeas  corpus 719 

PHYSICIANS— 

Form  of  common  count  for  services,  assumpsit 67 

Form  of  declaration  against,  for  malpractice,  case 459 

PLEAS— 

In  Abatement  (see  Abatement). 
In  Bar. 

Nature  and  requisites  of,  etc ■ 163 

(See  pleadings  in  bar  under  title  of  respective  forms  of  action.) 

POOR  PERSONS— 

May  prosecute  suits  without  costs,  etc 747 

Form  of  affidavit  for  leave,  etc 748 

PROPERTY  IN  DEFENDANT— 

Form  of  plea  of,  in  replevin 531 

Form  of  replication  to  plea  of 532 

Observations  on 532 

PROPERTY  IN  THIRD  PERSON— 

Form  of  plea  of,  in  replevin 533 

Form  of  replication  to  plea  of 533 

Observations  on 533 

PUBLICATION  OF  NOTICE - 

To  defendant  in  attachment 626 

To  non-resident  garnishee , 645 

To  party,  of  taking  depositions 781 

PUIS  DARREIN  CONTINUANCE— 

Forms  of  pleas  of 261 

Observations  on 262 

QUANTUM  MERUIT— 

Form  of,  count  of,  in  assumpsit 72 

Observations  on 72 

QUANTUM  VALEBANT— 

Form  of,  counts,  in  assumpsit 73 

Observations  on 72 


r 


GENERAL  IXDEX.  919 

Qui  tam  Actions^Referees. 

QUI  TAM  ACTIONS— (See  Debt,  action  of). 

Observations  on .' 381 

Same 383 

Same 387 

Judgment  in 827 

QUO  WARRANTO— 

Nature  of  the  writ,  etc 684 

The  proceed'utgs  by  information 685 

In  what  cases  it  lies,  etc 685 

When  leave  to  file  will  be  granted 686 

When  it  will  not  be  granted,  etc 688 

Statutory  proceedings,  etc 691 

Summons  to  be  issued,  etc 692 

Service  of  same 692 

Defendant  required  to  plead 693 

Time  allowed  to  plead 693 

Judgment  in.,. 693 

Nature  of 693 

Appeals  and  writs  of  error,  etc 693 

By  and  against  irhat  intrties  the  infoniuitinn  mat'  be  fled 694 

Matters  preliminary 695 

Practice  in,  etc •, 695 

The  information,  etc ' 695 

Form  of,  by  attorney  gpneral.  etc 696 

Form  of,  at  instance  of  relator 697 

Defenses  to  the  2>roeeeding 699 

Pleas  to,  etc 699 

Forra  of  plea,  by  corporation,  etc TOO 

Form  of  plea  by  person,  etc 700 

Replications  to  pleas,  etc 701 

(See  observations  following  eachiirecedent.) 
REAL  PROPERTY- 

Trespass  for  injuries  to 5o3 

(For  Forms  of  Declarations  for,  see  Tuespaps,  Action  op.) 

In  debt,  for  cutting  trees  on 372 

RECOGNIZANCE— 

Observations  on 663 

Form  of  scire  facias  on 665 

To  cover  judgment  in  attachment 629 

REFEREES— 

Statutory  proceedings,  etc ^39 

Exceptions  of  report,  when  to  be  made 840 

Attendance  of  witnesses 84 1 

Judgment — Referee's  fees,  costs 841 

Testimony — Record 84 1 

Form  of  agreement  to  refer 841 


920  GENEEAL  INDEX. 

Release — Security  for  Costs. 

REFEREES— Continued. 

Form  of  order  appointing 84'2 

Form  of  report  of  referee  in  favor  of  plaintiffs 842 

Form  of  report  of  referee  in  favor  of  defendant 843 

Form  of  exceptions  to  report 843 

RELEASE— 

Form  of  plea   of,  in  assumpsit 210 

Form  of  replication  to  plea  of 211 

Observations  on 211 

REPLEVIN— Action  of. 

History  and  nature  of  the  remedif 515 

Where  the  action  lies,  etc 517 

"Who  may  maintain  the  action 522 

Who  may  be  made  defendants 524 

Commencement  of  the  action 525 

Form  of  plaint  or  affidavit 526 

Declarations  in 527 

Defenses  to  the  action 528 

(See  observations  following  each  form.) 

(For  Forms  of  Declarations,  Pleas,  Eeplications,  etc.,  see  In- 
dex TO  Forms,  iJosi!;  REPLEVIN,  Action  op.) 
REPLICATIONS— (See  titles  6f  respective  forms  of  actions.) 
SCIRE  FACIAS— 

Nature  of  the  tvrit,  etc 655 

To  make  party  to  judgment 656 

Against  garnishees,  etc 656 

To  revive  judgment 657 

Form  of  praecipe  for 658 

Form  of,  to  revive  judgment 658 

On  mortgages,  etc 659 

Form  of,  to  foreclose  mortgnge 661 

Form,  same,  etc 663 

On  recognizances,  etc 663 

Form  of,  on  recognizance 665 

Defenses  to,  etc 667 

What  defendant  may  plead 667 

(See  observations  folloiving  each  form.) 
SECURITY  FOR  COSTS— 

When  required 39 

By  non-residents,  etc.,  before  commencing  suit 89 

Suits  on  official  bonds 40 

In  penal  actions 40 

Suits  by  infants,  by  next  friend,  etc 40 

Form  of  security  for 40 

Approval  and  effect  of  bond  for 41 

Motion  to  dismiss  for  want  of 41 


f 


ge:^ekal  mDEX.  921 

Seduction — Suggestion   of  Mesne  Profits. 

SECUIUTY  FOR  COSTS— Continued. 

Rule  to  file  security 42 

Cross-motion  for  leave  to  supply,  etc 42 

Objections  to  surety 42 

Plaintiff,  when  a  poor  person,  may  prosecute  without  security 

for 42 

Affidavit  of.  etc 42 

After  suit  hi  ought 745 

When  required,  etc '  745 

Form  of  affidavit  for  rule,  to  give,  etc 746 

When  motion  for,  to  be  made 746 

Plaintiff  a  poor  j^^f'son,  etc 747 

Form  of  affidavit  for  leave  to  prosecute  as  such 748 

Form  of  bond  for  costs,  after  suit  brought 748 

SEDUCTION— (See  Criminal  Conveks'ation.  ) 

Of  plaint  ff's  daughter,  etc 4o3 

Form  of  declaration  for,  in  case 453 

Form,  same,  in  trespass 57 1 

SET-OFF— 

Form  of  notice  of  set-off  under  general  issue 168 

Copy  of  instrument  or  account  to  be  filed  with  notice  or  pleas, 

etc 169 

Form  of  plea  of  set-off,  in  assumpsit 204 

Form  of  replication,  nil  debet,  to  plea  of 205 

Form  of  plea  of  set-off.  in  debt 396 

(See  observations  following  each  form.) 
SHERIFF— (See  Constable.) 

May  administer  oath  to  bail 45 

Liability  for  taking  insufficient  bail 45 

Forms  of  declarations  against. 

For  taking  insufficient  sureties  in  replevin 457 

On  his  official  bond 343 

For  not  admitting  counsel  to  prisoner S78 

Form  of  pleas  by. 

Justification  under  execution  in  replevin 534 

Same,  in  trespass 595 

(See  observations  follotci^ig  each  precedent.) 
SIMILITER— 

Common  and  special  to  pleas ^'74 

Form  of  special  similiter 1 75 

Form  of,  to  replication  concluding  to  the  country 8'dl 

SUBMISSION  TO  JUDGE— 

Statutory  provisions _•  •   B44 

Form  of  agreement  to  submit 844 

SUGGESTION  OF  MESNE  PROFITS— (See  Ejectment.) 


922  GENERAL  INDEX. 

. 9 

Sureties — Trial  and  Verdict. 

SURETIES— 

Forms  of  pleas  hy. 

That  creditor  gave  further  time  to  principal,  etc 284 

That  creditor  was  requested,  in  writing,  to  sue,  etc 238 

(See  observations  follotving  these  forms.) 

May  surrender  principal : 46 

May  arrest  principal 48 

May  obtain  judgment  against  princiiDai,  when,  etc 49 

Prosecution  of  bail,  etc 48 

Suit  on  bond  of,  when,  etc 48 

TENDER— 

Form  of  plea  of,  in  assumpsit 228 

Forms  of  replications  to  plea  of 231 

Observations,  on 229 

Form  of  plea  of,  in  debt 392 

TRESPASS— Action  of. 

Nature  of  the  action ,  etc 541 

Distinction  between  trespass  and  case  abolished 543 

For  Injuries  to  the  Person 543 

Where  the  action  lies  for 543 

For  Injuries  to  Personal  PRorERTv 548 

Where  the  action  lies  for 548 

Who  may  maintain  the  action,  etc 551 

Against  whom  it  lies,  etc 552 

For  Injuries  to  Real  Property 653 

Where  the  action  lies  for 554 

Commencement  of  the  act-ion 558 

The  Declaration,  etc 559 

Matter  or  thing  affected 559 

Plaintiff's  right  or  interest 560 

Statement  of  the  injury 561 

The  damages 564 

Measure  of 564 

Vindictive,  etc 565 

Joinder  of  counts,  etc 565 

Defenses  to  the  Action 580 

Pleas  in  bar 580 

New  assignment,  etc 602 

(See  observations folloirijig  each  precedent.) 

{For  Forms  of  Declarations,  Pleas,  Replications,  etc.,  sec  Index 
to  Forms,  post,  TRESPASS— Action  of.) 
TRIAL  AND  VERDICT— 

Who  may  open  case,  etc 792 

Order  of  proceedings  at  the  trial,  etc 792 

Deliberations  of  the  jury 794 

Delivery  of  the  verdict,  etc 795 


I 


GENEEAL  IXDEX.  923 

Tro\  er — Work  and  Labor. 

TRIAL  AND  VERDICT— Continued. 

Verdicts,  etc 7^6 

General  verdicts,  etc 796 

Special  verdicts,  etc 797 

Polling  of  the  jury 791 

TROVER— Action  of. 

^Nature  of  the  action,  etc 497 

Where  the  action  lies,  etc 497 

Commencement  of  the  action ; 506 

The  declaration,  etc 507 

Defenses  to  the  action 511 

Fleas  in  bar 511 

What  plaintiff  must  prove 513 

(See  observations folloici)iff  each  precedent.) 
{For  Forms  of  Declarations,  Pleas,  etc.,  see  Ixdex  to  Foujis, 
post,  TROVER— Action  op.) 
USURY— 

Form  of  plea  of 197 

Observations  on  plea  of 198 

Form  of  replication  to  plea  of 198 

VERDICTS— (See  Tkial  and  Vkhdicts.) 

Judgment  on 819 

WAREHOUSE  ROOM— 

Form  of  common  count  for 67 

WARRANTY— Breach  of. 

Form  of  declarations  on. 

Of  a  horse,  etc 112 

Of  goods  sold  by  sample,  etc 113 

Of  covenants  of,  in  deeds,  etc 295 

Form  of  pleas  of  breach  of. 

To  declaration  on  note,  etc 241 

Same,  etc 246 

Same,  etc. ,  of  a  horse   247 

Same,  etc.,  of  title  of  land 248 

(See  observations  following  each  precedent.) 
WITNESSES— (See  Evidence.) 
WORK  AND  LABOR— 

Form  of  common  count  for 65 


'  <^. 


INDEX  TO  FORMS. 

(See  General  Index,  ante.) 


ABATEMENT— 

Forms  of  pleas  m. 

No.    56.     To  jurisdiction  of  court 150 

No.    57.     Misnomer  of  defendant 152 

No.    59.     Misjoinder  of  party  defendant 156 

No.    61.     Same,  of  party  plaintiff 157 

No.    62.     Same,  of  defendants,  etc 158 

No.    63.     Another  action  pending 160 

No.  296.     In  attachment 627 

Forms  of  replications  to  2}leas. 

No.    58.     To  plea  of  misnomer 155 

No.    60.     To  plea  of  misjoinder 156 

No.    64.     Nnl  tiel  record  to  i>\ea  of  another  action  pending.  .. .   160 
No.    65.     New  assignment  to  plea  of  another  action  pending. . .  161 

Forms  of  demurrer  to  2>leas  of. 

No.  124.     General  form  of 272 

No.  125.     Joinder  in 272 

ACCOUNT— Action  of— 

Forms  of  declarations  in. 

No.  128.     Against  bailiff,  to  account  for  goods,  etc 280 

No.  129.     Against  receiver,  etc 281 

No.  130.     Tenant  in  common  against  co-tenant 282 

No.  131.     Partner  vs.  partner,  etc 283 

No.  132.     Same,  as  bailiff  of  lands 285 

Forms  of  pleas  in. 

No.  133.     Never  bailiff,  etc 286 

No.  134.     Never  receiver,  etc 286 

No.  135.     To  suit  bf>t\veen  tenan's  in  common 286 

No.  136.     That  defendant  has  fully  accounted 287 

AFFIDAVITS— 

Forms  of. 

No.  295.     In  attachment 620 

No.  29S.     Same,  in  aid  of  assumpsit 634 

No.  299.     Same,  in  aid  of  trespass,  etc 635 

No.  300.     For  process  of  garnishment 638 

Of  claim  with  declaration 66 

(925) 


026  INDEX  TO  FORMS. 

Agreed  Cases — Questions  of  Law  Certified — Arbitration  and  Award. 

AFFIDAVITS— Forms  o/— Continued. 

No.    67.     Of  merits  with  plea 167 

No.  194.     For  publication  in  distress  for  rent 410 

No.  234.     In  replevin 526 

1.  For  ca.  ad  res.  charging  fraud,  etc 51 

2.  Same,  concealing  property,  etc 51 

3.  Same,  in  actions  sounding  merely  in  damages,  etc 52 

No.  S30.     For  rule  for  security  for  costs 746 

No.  331.     For  leave  to  prosecute  as  poor  person 748 

No.  336.     For  continuance 756 

No.  339.     Of  proof  of  warrant  of  attorney  to  confess  judgment. .  823 

AGREED  CASES-QUESTIONS  OF  LAW  CERTIFIED— 

Forms  in. 
No.  355.     Agreement  to  submit  between  parties  in  suit  pending  848 

No.  356.     Decision  of  court  upon  agreed  cases 849 

No.  357.     Agreement  that  judge  may  certify  quesfions  of  law.. .  850 

No.  358.     Agreement  of  parties  as  to  questions  of  law 850 

No.  359.     Certificate  of  judge  as  to  questions  of  law,  etc 851 

No.  360.     Same,  as  to,  etc 853 

No.  361.     Decision  of  judge  upon  questions  of  law,  etc 855 

No.  362.     Affidavit  as  to  good  faith 855 

ARBITRATION  AND  AWARD— 

ponns  of  siihniissioiis. 

No.  363.     In  suit  pending 876 

No.  364.     Same,  each  party  to  select  one  arbitrator  and  the  court 

the  third 876 

No.  365.     Order  referring  suit  pending 877 

No.  366.     Oath  of  arbitrators 877 

Forms  of  awards. 

No.  367.     In  suit  pending .' 877 

No.  368.     Of  controversies  not  in  suit 878 

No.  369.     In  controversies  not  in  suit 878 

No.  370.     Of  all  matters  in  controversy 879 

No.  373.     On  common  law  submission,  by  one  arbitrator '  881 

No.  374.     Same,  by  several  arbitrators 881 

Form  of  arbitrators'  bond. 

No.  372.     Given  by  each  party  to  the  other 880 

No.  150.     Form  of  declaration  on  an  award 326 

No.  189.     Form  of  plea  of  no  award 400 

No.    99.     Form  of  plea  of  award 223 

Forms  of  replications  to  2'>^<-'as  of. 

No.  387.    To  plea  of  award: 889 

No.  388.     To  plea  of  arbitrament 889 

Ordek  Referking  Suit  Pending. 

No.  365.    Form  of 877 

Forms  of  awards. 
No.  367.    In  suit  pending 877 


INDEX  TO  F(3EMS.  927 

Assumpsit. 

ARBITR.VnOX  AN"D  AWARD— Continued. 

No.  369-     In  controversies  not  in  suit 878 

No.  373.     Cn  common  law  submission,  one  arbitrator 8''1 

No.  374.     Same  b3-  three,  or  more  or  less  arbitrators 881 

ARBiTiiATiojH  Bond. 

No.  372.     Form  of,  given  by  each  party  to  the  other 880 

ASSU.ArP.3IT— AcTiox  of— 

FoKMS  OP  Declarations  in. 

No.  375.     Commencement  and  conclusion  of 882 

No.      1.     Common  inilehUatus  counts 65 

1.  Goods  sold  and  delivered 65 

2.  Goods  bargained  and  sold 65 

3.  Labor  and  services 65 

4.  Work  and  material 66 

6.     Money  lent 66 

6.  Money  expended 66 

7.  Money  received 66 

8.  Interest 66 

9.  Account  stated 66 

10.  Board  and  lodging 66 

11.  Hire  of  horses,  etc 66 

12.  Stabling  and  keeping  horse^!,  etc 67 

13.  Necessaries,  etc 67 

14.  Physician's  biil 67 

15.  Attorney's  bill 67 

16.  Warehouse  room 67 

No.      2.     Common  counts  consolidated 67 

No.  376.     Same  condensed 882 

No.      3.     Quantum  meruit  count 72 

No.      4.     Quantum  valebant  count 72 

Common  Counts  relating  to  the  character  in  which  the  plaintiff 
sues,  or  defendant  is  sued. 
No.      5.     By  surviving  partner  on  promise  to  both  partners. .. .     73 

No.      6.     Against  surviving  partner  for  work  done 7^. 

No.      7.     Husband  and  wife  for    work,  etc.,   by   wife    befor^; 

marriage  * 75 

No.      8.     Against  husband  and  wife  for  work  done,  etc.,  for  wife 

before  marriage  * 76 

No.      9.    By  executor  for  work,  etc.,  on  promise  to  testator. . ..     77 

No.    10.     By  same,  on  promise  to  the  plaintiff  as  executor 78 

No.     11.     By  husband  and  wife,  executrix  before  marriage*. ..     79 

No.     12.     By  administrator,  on  promise  to  intestate 79 

No.    13.     By   husband  and  wife,    administratrix  before   mar- 
riage * 80 

*Tlie^e  forms  are  useless  under  statute  of  IliinoU.    A  married  Wouiau  causuc,auJ 
be  bucd,  as  ii  sole. 

59 


928 


INDEX  TO  FORMS. 


Assumpsit. 


A^SUM  PSIT— Continued. 
Specfal  Counts. 

On  2)romissori/  notes. 

No.    14.     Payee  vs.  maker 80 

N  ).    15.     Sumo,  with  common  counts 81 

N  ).    16.     Same,  short  form 82 

No.    17.     On  six  notes  in  one  count 83 

No.    18.     Indorsee  vs.  maker 85 

No.    19.     Indorsee  of  executor  vs.  maker 86 

No.    20.     Surviving  partner  as  payee  vs.  surviving  partner  or 

maker 87. 

No.    21.     Executor  of  payee  vs.  maker 89 

No.    22.     Administrator  of  payee  vs.  maker 89 

No     23.     Partners  pa3'ees  vs.  partners  makers 90 

No.    24.     Payee  against  husband  and  wife,  note  given  by  wife 

while  sole  * 91 

No.    25.     Indorsee  against  indorser,  alleging  prosecution  of  suit 

against  maker 91 

No.    26.     Same,  suit  against  maker  unavailing 98 

No.    27.     Same,  maker  having  left  the  State,  etc 99 

No.    28.     Payee  vs.  guarantor 100 

On  order. 

No.    29.     Payee  vs .  drawer,  on  order  not  accepted 103 

On  a  check. 

No.    30,.     Payee  vs.  drawer,  etc 104 

On  inland  biUs  of  exchange. 

No.    31.     Drawer  vs.  acceptor,  on  bill  accepted,  generally 105 

No.    32.     Same,  etc 106 

No.    33.     Same,  on  bill  pajvable  to  a  third  person,  and  returned 

to,  etc.,  drawer 107 

No.    34.     Payee  vs.  acceptor,  on  bill  accepted  generally 108 

No.    35.     First  or  subsequent  indorsee  against  acceptor ."  109 

No.    36.     Payee  vs.  drawer  of  bill,  on  default  of  acceptance 109 

No.    ■■7.     Same,  defendants  had  no  effects  in  drawee's  hands. . .  110 

No.    38.     Same,  on  default  of  payments 110 

Oji  warranties. 

No.    3).     On  a  warranty  of  a  horse  to  be  sound 112 

No.    40.     Same,  of  hops  sold  by  sample 113 

On  leases. 
No.    41.     Landlord  vs.  tenant  from  year  to  year,  on  implied  con- 
tract, etc 116 

No.    42.     Same,  for  leaving  premises  out  of  repair,  etc 117 

On  promises  to  marry. 

No.    43.     On  promise  to  marry  on  request 118 

No.    44.     Count  for  marrying  another  woman 118 

•  Not  necessary  iu  lUiuois. 


i:n'dex  to  foems.  929 

Assumpsit. 

ASSUMPSIT— Continued. 

No.    45.     On  promise  to  marry  in  a  reasonable  time 118 

No.    46.     On  promise  to  marry  at  a  particular  time 119 

Against  bailees. 
No.    47.     Against  hirer  of  horse  for  using  it  improperly,  etc. . .   122 

No.    48.     Against  carrier  by  land,  for  loss  of  goods 125 

No.    49.     Against  captain  of  ship,  on  his  bill  of  lading,  for  loss 

of  goods , 127 

On  contracts  of  sale  of  goods,  etc. 

No.    50.     For  not  accepting  goods  sold 130 

No.    51.     For  not  accepting  goods  made  for  defendant 131 

No.    52.     For  not  delivering  goods  within  a  sjieciGed  time 132 

No.    53.     For  not  delivering  goods  at  a  particular  place,  etc 133 

No.  377.     On  promise  to  be  accountable  for  goods  sold  to  a  third 

person 883 

No.  378.     On  promise  to  pay  money  as  difference  in  exchange  of 

property 884 

On  contracts  for  employment. 

No.  379.     On  written  contract  for  employment,  etc 885 

No.  380.     Same,  on  verbal  contract 885 

On  policies  of  insurance. 

No.    54.     On  fire  insurance  policy,  etc 134 

No.    55.     Same 139 

Forms  of  Pleas  in  Abatkmknt  in. 

{See  Abatkment,  Forms  op  Pleas,  ante.) 
Forms  op  Pleas  in  Bar  in  general  issue. 

No.    66.     Non  assumpsit 166 

No.    68.     Notice  of  set-off  under 1C8 

Special  pleas  in  bar. 

No.    70.     Statute  of  limitations  (Rep.  No.  71.  73) 175 

No.    75.     Infancy  (Itep.  No.  76,  77,  79) ISl 

No.    81.     St;  t  ite  of  frauds,  agreement  to  be  porforiued  witbin 

one  year,  etc.  (Rep.  82) 186 

No.    83.     Same,  promise  was  to  answer  for  debt  of  another,  not 

in  writing  (Rep.  84) 187 

No.    85.     Fraud  and  circumvention  in  obtaining  execution  of  in- 
strument (Hep.  No.  87) 191 

No.    86.     Fraud,  in  action  by  assignee  of  notes  by  surety   that 

note  was  obtained  by  fraud,  etc.  (Rep.  No.  87) 191 

No.    88.    Usury  (Rep.  89) 197 

No.    90.     Set-off  (Rep.  91) 204 

No.    92.    Release   (Rep.  93) 210 

No.    94.     Payment  (Rep.  95) 215 

No.    96.     Accord  and  satisfaction,  delivery,  etc..  of  goods,  etc. 

(Rep.  97) 218 


930  INDEX  TO  FOEMS. 

Assumpsit. 

ASSIJM  PSIT— Continued. 

No.    98.     Same,  account  stated  and  delivery   of  note  in  satis- 
faction   -. 221 

No.    99.     Arbitration  and  award    (Rep.  ICO) 223 

No.  101.     Judgment  recovered  (R.-p.  102) 224 

No.  103.     Tender,  etc.    (Rep.  104,  105) 228 

No.  106.     By  surety  on  note,  that  creditor  gave   further  time  to 

principal,  without  his  assent 234 

No.  107.     By  same,  on  note,  creditor  was  requested,  in  writing, 

to  sue,  etc 238 

No.  108.     Breach  of  warranty,  suit  on  note,  etc 241 

No.  109.     Want  of  considei'ation,  suit  on  note,  etc 245 

No.  110.     Total  failure  of  consideration,  suit  on  note,  etc ...  246 

No.  111.     Same,  breach  of  warranty  of  horse,  etc 1:47 

No.  112.     Same,  to  suit  by  assignee  of  note  given  on  purchase  of 

real  estate,  etc 248 

No.  882.     Total  failure  of  consideration,  note  given  for  fees,  etc.  887 

No.  113.     Partial  failure  of  consideration,  etc 251 

No.  114.     Promises    were    for    money    won  at  gaming  (Rep. 

No.  389) ! 252 

No.  115.     Discharge  in  bankruptcy 253 

No.  116.    Illegal  considera'don,    note  given  for   difference   in 

options,  etc 255 

No.  117.     Denying  execution  of  instrument  sued  on 257 

No.  118.     By  one  defendant,  denying  joint  liability 258 

No.  119.     Denying  joint  liability 258 

No.  120.     Nul  tie!  corporation 259 

Puis  darrein  continuance,  release,  etc 261 

Same,  another  form 262 

No.  121.     Same,  etc • 262 

Forms  op  Replications  to  Pleas  in  Bak. 

No.    69.     Special  s)/H (7 (7e>"  to  «o?»  «s.<^?^»»^>.'?/7,  No.  66 175 

No.    71.     To  plea  of  statute  of  limitations,   No.  70,    cause  of 

action  did  accrue  within,  etc 176 

No.    73.     Same,  defendant  was  out  of  state-,  etc.  (R>j.  No.  74).  177 

No.    76.     To  plea  of  infancy,  No.  75,  denying  infancy 182 

No.    77.     Same,  goods,  etc.,  were  necessaries,  etc.   (Rej.  No.  78)  182 
No.    79.     Same,  defendant  confirmed  promises   after  becoming 

of  age   (Rej.  No.  80) 183 

No.    82.     To  No.  81,  statute  of  frauds,  that  agreement  was  to  be 

performed  within  a  year 186 

No.    84.     To  No.  83,  statute  of  frauds,  promise  was  not  to  answer 

for  debt  of  another 187 

No.    87.     To  Nos.  85,  86,  denying  that  execution  of  instrument 

was  obtained  by  fraud 192 

No.    89.     To  No.  8S,  plea  of  usury  that  note  was  given  on  legal 

contract,  etc 198 


INDEX  TO  FORMS.  931 

Attachment. 

ASSUMPSIT— Continued. 

No.    91.     To  No.  90,  set-oflP,  jn7 rfefce^  ....205 

No.  386.     Same,  statute  of  limi-tations  to  plea  of  set-off 889 

No.    93.     To  No.  92,  plea  of  release  twn  est  factum 211 

No.    95.     To  No.  94,  plea  of  payment  den3'inj2r  payment 216 

No.    97.     To  No.  96,  plea  of  accord  and  satisfaction,    denying 

delivery  of  property,  etc 219 

No.  100.     To  No.  99,  plea  of  arbitration  and  award,  denying  the 

award 224 

No.  387.     Same 889 

No.  38S.     Same 889 

No.  102.     To  No.  101,  plea  of  judgment  recovered,  denying  that 

causes  of  action  were  the  same 225 

No.  104.     To  No.  103,  plea  of  tender,  denying  tender,  etc 231 

No.  105.     Same,  admitting  tender 231 

No.  389.     To  No.  114,  plea  of  gaming,  etc.,  that  note  was  not 

for  money  won  at  gaming 890 

No.  383.     To  No.  381,  another  action  pending,  etc 888 

No.  385.     To  double  replication 889 

Forms  op  Re.joinders  to  Replications. 

No.    72.     Special  similiter  to  replication  concludiiig  to  the  coun- 
try   : 176 

No.  390.     Commencement  of  rejoinder  to  a  special  plea 890 

No.  391.     Of  conclusion  with  verification 891 

No.    74.     To  No.  73,  replication  to  plea  No.  70,  statute  of  lim- 
itations, denying  that  action  was  commenced  within, 

etc 177 

No.    78.     To  No.  77,  replication  that  goods  sold  to  infant  were 

necessaries,  denying  the  same 182 

No.    80.     To  No.  79,  to  replication  to  plea  of  infancy,  that  de- 
fendant confirmed  promise,  etc.,  denying  the  same.  183 

No.  392.     To  double  replication 891 

No.  393.     To  replication  to  plea  of  award 891 

Forms  of  Demurrers  in. 

No.  122.     Demurrer  to  declaration 268 

Short  form  of 269 

No.  124.     To  plea  in  abatement 272 

No.  126.     To  plea  in  bar 273 

Forms  op  Joinder  in  Demurrer. 

No.  123.     To  a  declaration  or  replication 269 

Short  form  of 2G9 

No.  125.     To  demurrer  to  plea  in  abatement 272 

No.  127.     To  demurrer  to  plea  in  bar 274 

ATTACHMENT — Proceeding  in.  Forms  in,  misceUaneoiis. 

No.  295.     Affidavit  for 620 

No.  296.     Plea  in  abatement  in 627 


932  INDEX  TO  FOEMS. 

Award — Case. 

ATTACHMENT- Continued. 

No.  297.     Plea  by  third  party  claiming  property — interpleader.   633 

No.  298.     Atfidavit  for,  in  aid  of  assumpsit,  etc 634 

No.  299.     Same,  in  aid  of  trespass,  etc 635 

Judgfe's  order  for 635 

No.  300.     Affidavit  for  garnishment 638 

No.  301.     Interrogatories  to  garnishee 640 

No.  302.     Answer  of  garnishee 640 

Forms  in  Attachment  of  Water  Crafts,  etc. 

No.  303.     Form  of  petition  for 652 

No.  304.     Same,  where  name  of  owner  is  unknown 652 

AWARD— (i)e«  Forms  in  Arbitration  and  Award,  ante.) 
BAIL  IN  CIVIL  CASES— 
Forms  in,  miscellaneous. 

No.      1.     Affidavit  for  ca.  ad  res.  charging  fraud,  in  actions  ex 

contractu 51 

No.      2.     Same,  charging  concealment  of  property,  etc 51 

No.      8.     Same,  in  actions  sounding  merely  in  damages 52 

Judge's  order  for  ca.  ad  res 63 

Bond  by  plaintiff 53 

Bond  by  defendant 54 

BILLS  OF  EXCEPTIONS  — 
Forms  in. 

No.  847.     To  evidence,  instructions,  etc 836 

No.  348.     On  refusal  of  continuance 838 

CARRIERS— (5ee  Common  Carriers.  ) 
CASE — Actions  on  the  — 
Forms  of  declarations  in. 
No.  197.     Against  R.  R.  Co.  for  negligently  running  train  across 

highway,  whereby  plaintiff  was  injured 422 

No.  193.     On  statute,  against  R.  R.  Co.  for  not  ringing  bell,  etc,  427 
No.  199.     Ag'ainst  R.  R.  Co.  for  negligence  in   management  of 

train,  etc \ 428 

No.  200.     Same,  for  damage  caused  by  fire  from  engine,  etc 429 

No.  201.     Same,  for  damages  resulting  from   not  fencing  road, 

etc 432 

No.  202.     Same,  by  administrator,  for  causing  death  of  person. .  437 
No.  203.     Again«t  a  city,  permitting  sidewalk  to  remain  out  of 

repair,  whereby  plaintiff  was  injured 440 

No.  204,     Against  defendants   for  keeping  imcovered   vault  in 

street,  whereby  plaintiff"  was  injured 442 

No.  205.     Against  proprietor  of  stage-coach  for  negligence,  etc. .  444 
No.  206.     Against  defendant  for  keeping  dog  which  bit  plaintiff, 

etc 445 

No.  206.     For  malicious  prosecution 446 

No.  208.     For  criminal  conversation 451 


INDEX  TO  FOKMS.  933 

Certiorari — Change  of  Venue. 

CASE — Actions  on  the — Continued. 

No.  209.     For  debauching  plaintiff's  daughter 453 

No.  210.     For  deceit  in  warranty  ct  a  horse 455 

No.  211.     Same,  in  sale  of  wool  deceitfully  packed,  etc 456 

No.  212.     Against  sheriff  for  taking  insuliicient  sureties  in  re- 
plevin    457 

No.  21.S,     For  over-loading  and   immoderately  driving  a  horse, 

etc 458 

No.  214.     Against  physician   for  neglect,  etc.,   in  treatment  of 

plaintiff 459 

No.  215.     Against  an  attorney  for  negligence  in  prosecuting  an 

action 460 

No.  216.     Against  R.  R.  Co.,  as  common  carrier,  for  not  deliver- 
ing goods,  etc 461 

No.  217.     Against  seller  of  intoxicating  liquors,  on  statute,  etc., 

etc 462 

No.  218.     Against  same,  and  his  landlord,  on  statute,  for  injury 

by  intoxicated  person 464 

No.  3'"'9.     For  negligence  in  setting  fire  to  prairie 895 

No.  398.     Against  commissioners  of  highways  for  flooding  land 

by  a  ditch 894 

No.  400,    For  deceit  in  sale  of  mattress   infected  with  vermin, 

etc 896 

For  Slander. 

No.  219,     General  form  for 477 

No.  220.     For  words  charging  an  unmarried  woman  with  forni- 
cation    478 

No.  221,     For  words  charging  false  swearing 479 

No.  222.     For  words  charging  larceny 481 

No.  223.     For  words  spoken  in  foreign  langnnge 482 

No.  224.     By  a  tradesman,  for  words  imputing  insolvency,  etc. .  483 
For  Libel. 

No.  225.     In  newspaper 485 

No.  226.     By  letter  imputing  insolvency,  etc 486 

Forms  op  Pleas  in. 

No.  227.     General  issue,  not  guilty 489 

No.  228.     Justification  of  words  imputing  perjury 494 

No.  230.     .Justification  for  words  imputing  larceny 495 

Form  of  replication  to  }}lcas. 

Op  Justipication,  in  action  of  slander,  etc.,  de  injuria 495 

CERTIORARI— 
Form  op  Petition  for. 

No.  316.    To  justice  of  the  peace 709 

CHANGE  OF  VENUE— 

No.  333.     Form  of  notice  of  application  for 750 

No.  334.    Form  of  petition  on  account  of  prejudice  of  judge 750 

No.  335.     Same,  on  account  of  prejudice  of  inhabitants 751 


931  INDEX  TO  FOKMS. 

Common  Carriers — Debt. 

COMMON  carriers- 
No.    48.    Declarivtion  in  assumpsit,  against  carrier  by  land  for 

loss  of  goods 125 

No.    49.     Form  of  declaration  in  assumpsit  against  captain  of  a 

ship  on  bill  of  lading  for  loss  of  goods 127 

No.  205.     Form  of  declaration  against  proprietor  of  stage  coach 

in  case,  for  negligence,  etc 444 

No.  216.     Against  R.  R.  Co.  in  case,  for  not  delivering  goods,  etc.  461 
COMMON  COUNTS— (See  Forms  of  Declakations  in  Assumpsit.) 
CONFESSION  OF  JUDGMENTS— 
Forms  in. 

No  345.     Proof  of  warrant  of  attorney , . , 823 

No.  3455^.  Cognovit 824 

CONTINUANCES— 

Forms  in  aj^pUccifionfor. 

No.  336.     Affidavit  for,  on  account  of  absence  of  witnpss 756 

COSTS,  SECURITY  FOR— 

Form  of  bond  for,  by  non-residents,  etc 41 

No.  330.     Form  of  affidavit  for  rule 746 

No.  331.     Form  of  affidavit  for  rule,  etc 748 

No.  332.     Form  of  bond 748 

COVENANT— Action  of— 
Forms  of  declaration  in. 

No.  137.     Grantee  vs.  grantor,  on  covenants  in  deed,  etc 295 

No.  138.     Same,  on  covenants  in  deed  against  incumbrances. . . .  297 
No.  139.     Sicond  or  remote  grantee  against  grantor,  on  cove- 
nants of  -warranty,  etc 298 

No.  140.     On  covenants  in  lease  to  pay  rent k99 

No.  141.     Apprentice  against  master  for  breach  of  covenants  in 

indenture  (Plea  No.  146) 300 

No.  142.     On  fire  insurance  policy 302 

Forms  of  pleas  in. 

No.  143.     Non  est  factxim 306 

No.  144.     Plea  of  payment  to  actioji,  etc.,  for  payment  of  money  307 

No.  145.     Performance 309 

No.  146.     To  declaration  in  suit  by  apprentice,  plaintiff  deserted 

service,  etc.  (Dec.  No.  141) 309 

DEBT— Action  of— 
Forms  of  Deci-arations  in. 

No.  147.     Common  indebitatus  count 321 

No.  148.     Payee  vs.  maker  on  promissory  note,  etc 323 

No.  149.     On  bill  of  exchange,  payee  vs.  drawer,  etc 325 

No.  150.     On  an  award,  etc 326 

No.  151.     On  judgment  in  same  court 328 

N«.  152.     Same,  in  court  of  another  state 329 

No.  153.    Same,  of  justice  of  the  peace,  etc 330 


IXDEX  TO  FORMS.  935 

Debt. 

DEBT— Continaed. 

No.  154.     In  action  for  rent,  on  a  demise 3-31 

No.  155.     On  a  single  bill,  or  sealed  note 333 

No.  156.     On  appeal  bond,  on  appeal  to  Supreme  Court 335 

No.  157.     On  replevin  bond,  etc.  (Plea  No.  190) 338 

No.  158.     Same,  etc.  (Plea  No.  190) 340 

No.  159.     On  sheriff's  bond,  on  failure  to  make  amount  due  on 

execution,  etc 343 

No.  160.     On  guardian's  bond,  for  use  of  ward,  etc 348 

Same,  more  concise 350 

No.  161.     Same,  for  use  of  successor  of  guardian,  removed 351 

No.  ]  62.     On  administrator's  bond 353 

No.  163.     On  attachment  bond,  etc 358 

Isf  0.  164.     On  injunction  bond,  etc 362 

Another  form,  etc 364 

No.  165.     On  license  bond,  action   for  use   of  wife   of  person  to 

whom  intoxicating  liquors  were  sold 369 

No.  166.     On  statute,  against  seller  of  intoxicating  liquors,  by 

one  who  has  taken  care  of  person  intoxicated 371 

No.  167.     On  statute,  for  cutting  trees,  etc 372 

No.  168.     On  statute,  against  drover,  for  driving  off  horses,  cattle, 

etc 375 

No.  169.     On  statute,  against  sheriff,  for  not  admitting  a'torney 

to  see  prisoner .  •■ 378 

No.  170.     On  statute,  by  landlord  against  tenant,   for  double 

rent,  etc 379 

No.  395.     By  the  people,  to  recover  delinquent  taxes 892 

Form  of  pleas  to  decUtratwn. 

No.  172.     mi  debet 384 

No.  173.     Non  estfartutn 386 

No.  174.     Non  est  factum  and  nil  debet,  to  debt  on  bond,  and 

simple  contract 387 

No.  175.     Non  est  factum,  after  craving  oyer,  etc 388 

No.  176.     That  bond  was  delivered  as  an  escrow 390 

No.  177.     Onerari  non 391 

No.  178.     Tender,  to  debt  on  simple  contract — nil  debet  as  to 

part,  and  temlcr  as  to  residue 392 

No.  179.     Nul  tiel  record 393 

No.  396.     Eviction,  in  action  by  landlord  vs.  tenant  ( Rep.  No.  :;97)  893 

No.  181.     Duress,  menace  to  kill 395 

No.  183.     Set-off,  to  debt  on  money  bond,  etc 396 

No.  184.     Payment,  to  debt  on  bond 397 

No.  185.     Failure  of  consideration  to  debt  on  spi.'rialty 397 

No .  18  ■.     Performance,  generally 398 

No.  187.     Non  damnificatus 399 

No.  188.     To  debt  on  demise  for  rent,  no  rent  in  arrear 400 


93G  INDEX  TO  FOKMS. 

Demurrers — Garnishment. 

DEBT— Continued. 

No.  189.     To  declaration  on  arbitration  bond,  no  award  made..  40) 
No.  190.     To  declaration  on  replevin  bond,  tbat  merits  were  not 

determined  in  replevin  suit,  etc 401 

No.  191.     To  debt  on  statute,  former  conviction  for  same  of- 
fense    402 

Forms  of  replications  to  pleas. 

No.  180.     To  plea  of  mil  tiel  record  (No.  179) 395 

No.  182.     To  plea  of  duress  (No.  179) 396 

No.  397.     Denying  eviction 893 

DEMURRERS— (S'ee  Assumpsit,  Fokm  of  Demurrers  in,  ante.) 
DEPOSITIONS— 
Forms  in  talcing. 

No.  339.     Affidavit  to  be  filed  before  taking  depositions  o£  wit- 
nesses residing  in  another  county,  etc 775 

No.  340.    Notice  to  take,  etc 776 

No.  341.     Notice  and  interrogatories  for  taking,  etc.,  upon  in- 
terrogatories in  writing 779 

No.  342.     Caption  of,  etc 781 

No.  343.     Certificate,  etc 782 

DISTRESS  FOR  RENT— Proceedings  by— 

Nature  of  the  proceeding 405 

Forms  relating  to. 

No.  192.     Warrant  of,  by  landlord 408 

No.  193.     Inventory  to  be  filed  with  copy  of  distress  warrant. . .  409 

No.  194.     Affi-^lavit  for  publication,  etc 410 

EJECTMENT— Action  op— 
Forms  of  declarations  in. 

No.  290.     General  form 611 

No.  291.     By  several  persons,  naming  them,  as  plaintiffs,  jointly 

in  one  count,  and  separately  in  others 612 

Form  of  p)lea  to  declaration. 

No.  292.     Not  guilty 614 

Mes7ie  profits. 

No.  293.     Form  of  suggestion  of  claim  for 615 

No.  294.     Form  of  plea,  non  assumpsit,  to  suggestion  of  claim 

for 616 

EVIDENCE— (Sfc  Depositions,  ante.) 
Production  of  clocumentary. 
No.  338.     Notice  to  opposite  pnrty  to  produce   written  instru- 
ment, etc. ,  on  the  trial 772 

GARNISHMENT- (See  Attachment,  ante.) 
Forms  in. 

No.  300.     Affidavit  for  process  of 638 

No.-301.     Interrogatories  to  garnishee 640 

No.  302.     Answer  of 640 


IXDEX  TO  FOEMS.  937 

Habeas  Corpus — Quo  Warranto. 

HABEAS  corpus- 
Forms  IN,  Generally. 

No.  317.     Petition   for,  where    petitioner  is  detained  without 

warrant 719 

No.  318.     Same,  where  petitioner  is  detained  under  warnmt   of 

commitment 720 

No.  319.     Same,  by  parent  for  cliild 721 

No.  320.     Same,  where  petitioner  is  held  under  ca.  ad  ref. 721 

' No.  321.     Petition  for,  ad  testificandum 722 

Master's  order  allowing  same  in  absence  of  judgt^ 723 

No.  322.     General  form  of  writ  of 724 

No.  323.     Return  to  writ  of,  where  prisoner  is  in  custody- 726 

No.  324.     S  ime,  denying  detention 726 

No.  325.     Same,  by  party  not  an  officer 726 

No.  326.     Judge's  order  of  discharge,  in  vacation 729 

No  327.     Judge's  order,  in  vacation,  remanding  prisoner 730 

No.  328.     Order  of  discharge,  by  court,  in  term 730 

No.  329.     Order  of  court,  in  term,  remanding  prisoner 731 

interpleader- 
No.  297.    Form  of.  in  attacliment 633 

interrogatories- 
No.  301.     Form  of  interrogatories  to  garnishee 640 

No.  302.     Form  of  answer  of  garnishee 640 

judgments- 
Form  OP  Declarations  on,  etc. 

No.  151.     On  judgment  in  same  court 328 

No.  152.     Same,  of  court  of  another  state 329 

No.  153.     Same,  of  justice 330 

No.  305.     Form  of  ^ci.  fa.  to  revive 658 

No.  101.     Form,  plea  of  former  judgment  recovered 224 

No.  102.     Replication  to  No.  101,  denying  that  causes  of  action 

were  the  same 225 

mandamus- 
No.  309.     Form  of  p-^tition  for ...  678 

No.  310.     Form  of  answer  to  petition 682 

No.  311.     Plea  to  petition  for 633 

NEW  trials- 
No.  344.    Form  of  motion  for 808 

PLEAS — {See  .Assumpsit  and  Pleas  in  each  Form  op  Action.) 

QUO  WARRANTO— 

No.  312.     Form  of  information  by  attorney-general,  again^^t  a 

corporation,  (Plea  No.  314; 696 

No.  313.     Same,  at  instance  of  relator,  etc.,  (Plea  No.  315) 697 

No.  314.    Form  of  plea  by  corporation  to  information  by  attor- 
ney-general    700 

No.  315.     Same,  at  instance  of  relator 700 


938 


INDEX  TO  FORMS. 


Referees — Trespuss. 


TtEFEREES- 

No.  ;-!49.     Form  of  agreement  to  refer  cause  to P4l 

No.  350.     Form,  order  appointing S-t'i 

No.  351.     Form  of  report  of,  in  favor  of  plaintiff 842 

No.  352.     Same,  in  favor  of  defendant ; 843 

No.  353.     Form  of  exceptions  to  report  of 843 

REPLEVIN— Action  of— 

Form  of  affidavit  in. 
No.  234.     Form  of  affidavit  in 526 

Form  of  declarations  in. 

No.  235.    Form  of 527 

No.  236.     Count  in  trover  to  be  attached,  where  part  of  good^i  can 

not  be  found 528 

Form  of  pleas  ih. 

No.  237.     Non  cex)it 528 

No.  23S.     Non  detiniiit 530 

No.  239.     Not  guilty  to  count  in  trover 531 

No.  240.     Property  in  defendant 531 

No.  242.     Property  in  stranger 533 

No.  244.     Justification  by  a  sheriff  under  ^f.  fa.  against  a  third 

person 534 

No.  245.     Lien  on  property,  etc 536 

No.  246.     Property  held  as  pledge 538 

Form  acoivry,  etc.,  for  rent. 

No.  247.     Avowry  or  cognizance  for  rent 538 

Forms  op  Pleas  iisr  Bar  to  Avowry,  etc. 

No.  248.     Traversing  of  demise 539 

No.  249.     No  rent  in  arrear 540 

Forms  of  replications  to  j)leas. 

No.  241.     To  No.  240.     Property  in  defendant,  denying 532 

No.  243.     To  No.  242.     Property  in  stranger,  denying 533 

SCIRE  FACIAS- 

Forms  in. 

No.  305.     To  revive  judgment 658 

No.  306.     On  mortgage  to  foreclose 661 

No.  307.     Same,  etc ....  -. 663 

No.  308.     On  a  recognizance  taken  in  open  court,  etc 665 

SLANDER  AND  LIBEL— (.*>ee  Case,  actions  on  tiie,  as  to  forms, 

ETC.) 

SUBMISSION  TO  JUDGE— 

No.  354.     Form  of  agreement  to  submit  controversies  to  judge. .  844 
TRESPASS— Action  of— 
Forms  op  Declarations  in. 
For  injuries  to  the  person,  etc. 

No.  250.     For  an  assault,  alleging  special  damages 566 

No.  251.    For  a,  common  assault 668 


INDEX  TO  FOKMS.  939 

Trespass. 

TRESPASS— Continued. 

No.  252.     For  assault  with  pistol,  wounding,  etc 568 

No.  253.     For  riding  or  driving  against  plaintiff. 569 

No-  251.     By  husband  and  wife,  against  husband   and  wife,  for 

a  battery  of  one  wife  b\-  the  other 559 

No.  255.     Common  count  for  false  imprisonment 570 

No.  256.     For  an  assault,  etc.,  and  false  imprisonment 570 

No.  257.     For  debauching  plaintiff's  daughter,  etc 571 

No  25S.     For  criminal  conversation 571 

For  injuries  to  personal  property. 

No.  259.     For  taking  goods,  common  count,  de  bonis  asporfrifis  572 

No.  260.     For  chasing  cattle,  etc 572 

No.  261.     For  chasing  mare,  etc 573 

No.  232.     For  driving  carriage   against  plaintiff's,  whereby  he 

was  thrown  out  and  his  carriage  damaged 573 

No.  263.     For  killing  plaintiff's  horse 574 

No.  401.     For  shooting  plaintiff's  dog 897 

No.  264.     Against  constable,  on  the  statute,  for  taking   exempt 

prop  -rty  in  execution 575 

For  injuries  fo  real  estate. 
No.  265.     For  trespass   in  dwelling  house,  breaking  open  doors 

and  seizing  goods,  etc 576 

No.  266.     Count  for  common  expulsion 577 

No.  267.     For  trespass   to  land,  entering  close,  etc 577 

No.  268.     For  cutting  down  and  carrying  away  trees,  etc 579 

No.  269.     For  digging  in  coal  mine,  and   carrying  away   coal 

therefrom 579 

No.  270.     For  digging  mines,  raising  ore,  taking  and   convert- 
ing it 579 

Forms  op  Pi.eas  in  Bar. 

No.  271.     Not  guilty 582 

No.  272.     Son  nssaulf  demesne 583 

No.  273.     Same,  defense  of  child,  etc 584 

No.  275.     Mo! lifer  manus  imposuit,  to  preserve  the  peace,  etc..  587 
No.  276.     Same,  to  put  defendant  out  of  plaintiff's  dwelling 

house 588 

No.  277.     By  schoolmaster,  justifying  a  battery 689 

No.  278.     By  justice  of  the  peace,  in  an  action  against   him  and 

another,  justifying  the  issuing   of  a   capias,  under 

which  plaintiff  was  arrested  and  imprisoned 590 

No.  279.     Plea  justifying  an  arrest,  as  constable,  without  process.  591 

No.  280.     Same,  etc 592 

No.  281.     Same,  by  private  per-son 594 

No.  282.     By  sheriff,  justifying   taking   of  goods   under   a/ieri 

facias 595 

No.  284.     Injury  caused  by  plaintiff's  own  negligence 598 


940 


INDEX  TO  FORMS. 


Trover. 


TRESPASS— Continued. 

No.  285.    License 598 

No.  287.     Liheriim    tenementum 600 

FoKMs  OP  Replications  to  Pleas. 

No.  274.     General  replication,  de  injuria,  etc 585 

No.  283.     To  plea  of  justification  under  process,  etc 597 

No.  286.     To  plea  of  license 599 

No.  288.     To  plea  of  liberum  tenement  am,  denying  the  plea. . .  602 

No.  289.     New  assignment 602 

TROVER— Action  op— 

Forma  of  declarations  in. 

No.  231.     General  form 508 

No.  232.     By  executor,  for  conversion  in  lifetime  of  testator. . . .  509 
Form  op  Plea  in  Bar. 

No.  233.    Notguilty 513 


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